THEORIES OF ISLAMIC LAW by Imran Ahsan Khan Nyazee

THEORIES OF ISLAMIC LAW

The Methodology of [jtihad

Imran Ahsan Khan Nyazee

Contents

Foreword
Introduction
Major Themes

2.1 Ijtihdd through agrundnorm .........
2.2 Is there a common theory of interpretatioa? .

2.3 Separation between theory and pesalcat
24 The problem of rights. ‘
2.5 Disciplines related to wpul al-figh

The Meaning of Upal al-Figh
3.1 Ugill al-figh defined . .
3.11 The meaning of figh
3.1.2 Analysis of the definition
3.1.3 Usill al-figh . . >
3.1.4 The final definition... .
3.2 Comparison with legal theory

The Concept of Islamic Law

Law as the Hukm of Allah
4.1 The geundnorm .

4.2 The interest of Man . .
4.3 Shari‘ch and natural law .
44 Laws in casee where the shari‘ah is sileat .
4.5 The limits of Islamic law .
4.6 Law asa growing tree . .

5 Law and its Classification: The Hukm
5.1 Classification of primary rules
5.1.1 Obligations arising from primary rales
5.2 The hukm wad't or secondary rules
5.2.1 ‘Azimah and rukhsah
5.3. The purpose of the classification

6 The Actoand the Subject
6.1 The nature of the act (mabkum fih) . .
6.1.1 The conditions of obligation (tabi) .
6.1.2 The nature of the act and the aoe) involved .
6.2. The subject (mahkim ‘alayh) :
6.2.1 Ahliyah of legal capacity... 2. ee
6.2.2 Causes of defective capacity

T The Union of Primary and Secondary Riles
7.1 The union of rules

8 Doctrines of Hadd and the sokecor of Law
8.1 The spheres of Islamic law... . « Sh
8.2 A legal basis for the spheres
8.3 Interaction of the spheres
84. The spheres of law and hudid penalties
8.5 Advantages of visualizing two spheres

Il Theories of Interpretation

9 Common Features of Interpretation
9.1 Interpretation in general . ‘
9.1.1 The law is always the Aukm of Allih
9.1.2 The hukm of Allah and literal methods
9.1.3 Qiyds and the hukmn of Allah

10 Theories of General Principles
10.1 Background
10.1.1 Approaches to legal theory
10.1.2 Developments in the law after al-Shaf'
10.2 The earlier jurists and their methodology
10.3 Main features of Hanafi theory

‘Treortes oF Istamic Law iit
11 Theories of Strict Interpretation v7
11,1 Modification of existing legal theory by al-Shafiy . 178

11.1.1 The Sunnah governs the meaning of the Qur'an 179
11.1.2 The general word and the general principle . . 180
11.1.3 The need to strengthen the ete 181
11.1.4 The opinion of a Companion ........ . . 182

11.1.5 ALShafi't's views on analogy . 183

11.2 Zéhiri and Hanbali theories Cals y eee . 1B

12 The Theory of the Purposes of Law 189

12.1 Probable reason for evolving a new theory . 190

12.2 Strict theories and the texts . . 19)
12.3 The design of traditional legal et and the iten:

sion of the law 193

12.4 Al-Ghazali’s theory of the parponel of law 195

12.4.1 Al-Juwayni's proposals... . .. . 195

12.4.2 Legal theory and the purposes of law.» |... 197
12.4.3 Qiyas and the formation of principles
12.4.4 The concept of the munasib or
12.4.5 The structure of the attributes and the han a
12.4.6 Mu'aththir, munaaib, and mulé'im .. . .
12.4.7 The broader principle of maslahah
12:4,8 The purposes of Islamic law . . -
12.5 The new theory and the methodology of the jurlat
12.5.1 The theory in simple terms... esas
12.5.2 General propositions, principles of policy, and
moral norms © eee oo 28
12.5.8 The new theory and the principles employed . 220
12.54 The new theory and analogy»... .!- 24
12.6 The new theory and the development of the law... , 229

13 The Refinement of the Purposes of Law
13.1 Tying the strands together. ©. 0. ee
13.2. Magagid aleshari‘ah and the texts. asaya
13.3 The nature and structure of the magdpid .

13.3.1 Primary purposes in the service of the Hereafter240

13.3.2 The two faces of the magdsid ......

13.3.3 Primary and secondary purposes

13.3.4 Priorities within the magasid .. . .
134 Tracing the logic of the magasid . -

13.4.1 Nasi or the family unit? .

13.4.2 Public and private interests? . . -
13,5 Magagid and the Muslim community

13.5.1 The Muslim community as a living organism. .

13.5.2 The magasid and the political system

13.5.3 The magdsid and the economic system . . .

13.5.4 The magdgid and the legal system . . .

13.6 Priorities: Islamic and Western... ... . «

Ill [jtihdd Today

14 Lessons From Legal History
14.1 A theory of Islamic law
14.2 The principles of Islamic law
14.3 The Scope of [jtihad

15 The Modes of [jtihad
15.1 Strategies of Islamization ...........
15.1.1 ‘The general approach in Pakistan
15.1.2 Codification :
15.1.3 Applying the unwritten Islamic law
15.2 [jtihdd and the rule of recognition

16 Appendix
17 Select Bibliography

18 Glossary
19 Index

FOREWORD

“Islamic law,” writes Joseph Schacht, “is the epitome of Islamic
thought, the most typical manifestation of the Islamic way of life, the
core and kernel of Islam itself ( Introduction to Islamic Law, Oxford,
1964, 1). Some might perhaps find an element of exaggeration in the
characterization of Islamic law as the “core and kernel of Islam itself.”
Nevertheless, there can be no denying that among the world religions,
law occupies a distinctively important position in Islam; a position
possibly no less important than in the religious tradition of Judaism.

In recent decades, interest in Islamic Law has increased both in
the Islamic world and outside. It wax natural, in the first place, for
the Muslims to desire, and even insist, that in the post-colonial era
Islamic laws should replace the laws of colonial provenance. This
provided an impetus for scholarly effort in the field of Islamic law.
‘This is evident from the considerable number of studies that have ap-
peared on Islamic law and jurisprudence during the recent decades.
These studies have mostly been addressed to understanding substan-
Live Islamic laws - the family law, the penal law, the civil law, ete.,
of Islam, Compared to these, the works dealing with upui al-figh (Is-
lamic jurisprudence) are scarce. Even more scarce are such studies
in Western languages

‘The most significant works on Islamic jurisprudence in English
by Muslim scholars are Abdur Rahim’s Principles of Muhammadan
Jurisprudence. It is a competent work, but was written in the colonial
setting obtaining at that time (being first published in 1905), and has
thus become dated, The work of the Lebanese jurist Subhi Mahmas-
sani, has been available in its English translation since 1961 under
the tithe Falsafat al-Tashn* fi al-Islam, More recently, a few works
by Ahmad Hasan were published by Idamic Research Institute, Is-
lamabad. In addition 10 the Doctrine of Iyma’ in Islam (1978) and

vi Foreword

Analogical Reasoning in Islamic Jurisprudence (1986), the first of
his projected four-volume work, The Principles of Islamic Jurispru-
dence was published in 1993. Another significant work that appeared
in recent years is M. Hashim Kamali, The Principles of Islamic Ju-
risprudence (Selangor, Malaysia: Pelanduk, 1989), a comprehensive
and lucid one-volume work on the subject.

Imran Ahsan Nyazee’s Theories of Islamic Law thus forms part
of the growing, but still scarce literature on Islamic Jurisprudence in
English, The forte of Nyazee’s work is that while it attempts a faithful
exposition of Islamie Jurispradence—s *traditional representation”
44s the author chooses to call it—it is addressed to both Muslims and
non-Muslims; and above all, the author has written at the appropri-
length for the students of legal studies. Nyazee's knowledge
isprudence seems both extensive and profound, and hia under-
standing of “legal theories” sharp and incisive, which has made it

jossible for him to highlight significant parallels and dissimilarities
tween Islamic juristic concepts and approaches and those of other
juristic systems, ‘The author does not compromise a whit the unique-
ness and distinctiveness of Islamic Law and Jurisprudence, But Is-
lamic legal theories have been presented from the perspective of com-
rative jurisprudence and with such skill that the reader is enabled
10 sharply grasp the characteristics of Islamic Law that make it a
listinet legal and jurisprudential system. There is hardly any work
‘on Islamic jurisprudence which has made such a rigorous attempt
to enable specialists in law to understand Islamic jurisprudence in
terms they fully understand,

Theorves of Islamic Low should help lay readers, lawyers, and
university students to understand Islamic jurisprudence on its own
terms. For, it is indeed matic exposition of Islamic jurispru-
dence, written in a clear and lucid style. The work thus eminently
meets the requirements of a good text-book in Islamic jurisprudence,
Unlike an ordinary text-book, however, Nyazee has presented in it
some bold theses

‘One of the major contentions of the author is that

‘Tweorres oF Istamic Law fil

Each af these theories has played a useful role in the past and each
can play even today a vital role in the development of Islamic law.

Likewise, the author tries to explain the paradax of the so-called
rigidity of Islamic law at the theoretical level accompanied with a per-
ceptible degree of laxity in practice. The author has forcefully argued
that the Islami

These are separate but complementary
spheres. Neither is the relative fixity of the first sphere a manifes-
tation of the Muslim jurists’ mental rigidity. Nor is the flexibility of
the second sphere the manifestation of any cynical disregard of the
revealed texts on the part of the rulers.

‘The author has expressed his views boldly and candidly, It would
be natural for many scholars to disagree with the conclusions of the
author. If these disagreements spur them to serious research and
study, to carefully examine the variety of theses and hypotheses con-
tained in this work, one of our major purposes in publishing this
study would have been fulfilled. For it is our firm conviction that a
great deal of rigorous and meticulous research’is necessary for a better

into a legal system of contemporaneous relevance. For on 1!
hand it would obviously be preposterous for the present gener-
‘of Muslims, especially of their scholars, to turn a blind eye to
great intellectual heritage of legal doctrines bequeathed by
juslim jurists and lawyers of the past. On the other hand, there is
reason to believe that the last and final word on Islamic law was
‘several centuries ago and that the legal doctrines developed by
earlier jurists have to be uncritically maintained, in toto, by the
present generation of Muslims. Every generation, notwithstanding
its reverence for its ancestors, has to carry its own cross; has to fall
back on its own brain power to solve its problems.

viii Foreword

While welcoming this maiden work of the author, we fervently
hope and pray that he may have a long, productive academic career
in which he might enrich the tradition of Islamic legal scholarship.

Zafar Ishaq Ansari
October, 1994

Chapter 1

Introduction

Usiil al-figh or Islamic jurisprudence is the queen of Islamic sciences.
It has been developed, refined, and applied for the derivation of the
law by some of the greatest Muslim minds, throughout the ages. The
reason why it has been the object of so much interest in the past
is that a thorough understanding of this discipline is a prerequisite
to the study of Islamic law, tafsir, and hadith. What was true in
the past is true today. Today, expertise in the subject is essential not
only for the Muslim lawyer, but for all those occupied with the study
of Islam in general.

It is unfortunate, however, that in the present times the discipline
of ugul al-figh is not given the attention and care it deserves. This is
not to say that it is not taught in our institutions of Islamic learning,
‘of even in our law schools, It is, but the methods adopted are not
adequate. One cause of the lack of interest could be that there is very
little attempt to explain what the subject might mean to a modern
Muslim lawyer or a judge. A person trained in modern law does not
even know how to approach the subject for it is never explained to
him how he might relate it to concepts familiar to him. This is true
even when the subject is expounded in languages other than Arabic,
A reflection of this fact is to be found in the hesitation that prevails
aéout assigning a title or name to the subject in English. A brief
comparison with the science of Western jurisprudence might help
elucidate this point,

Usal al-figh has been assigned different titles by different writ-
ers, who attempt to understand what it really stands for. It has
been called “Islamic jurisprudence,” “Islamic legal theory,” and “the
methodology of Islamic law,” besides other things. Those who fail to
relate it to corresponding fields in the law, sometimes prefer to retain

2 Introduction

the original name of ustl al-figh. There is nothing wrong with this,
though, and all these titles are essentially correct, but the content
and scope of the subject remain vague for the modern lawyer. There
is, thus, a need to explain its meaning in a little more detail.

Part of the trouble in explaining the meaning of usu ai-figh lies
in determining what we mean by jurisprudence itself, in the West-
ern sense of the term. Western jurisprudence today has come to be
divided into two major areas: general jurisprudence and particalar
jurisprudence.' Institutions of legal learning in countries like Pak-
istan are still occupied solely with particalar jurisprudence, while
the Western world has moved away from it toward general jurispru-
dence, Particular jurisprudence deals with legal concepts that cut
across different branches of law, that is, concepts like right, prop-
erty, and duty. This is the area of jurisprudence that was expounded
by writers like Salmond & long time ago. General jurisprudence, as
the title implies, deals with broader questions. It deals with the na-
ture and concept of law itself; What is law? Why do we obey it?
What is the nature of obligation? How do judges discover and apply
‘the law? How are laws validated? What constitutes a legal system?
What role has morality to play in a legal system?

‘These and other questions of legal philosophy underlie this fas-
cinating field that took hold in the West in the last few decades,
and continues to dominate the work of legal philosophers. A study of
the works of legal philosophers like H.L.A, Hart, Lon Puller, Joseph
Raz, and Ronald Dworkin reveals that general jurisprudence is the
same thing. as ust! al-figh, though the legal materials it operates on
are secular in nature, while the materials for the latter are divine in
origin. Nevertheless, both are legal materials. What is surprising is
that the issues faced by Western legal philosophers today were ap-
proached by Muslim jurists more than a thousand years ago. It is
‘rue that the language used by Muslim jurists was different, or some
of the sophistication found today in modern legal systems was lack-
ing in those days, but the basic questions answered are the same.
A study of upil al-figh today must bridge this gap and relate the
discussions through a common language. A study of Islamic legal
theory or ustil al-figh, to be useful in the present age, must answer
some fundamental questions. A few of these aré:

‘The division of jurisprudence into general and particular is followed by some
legal philosophers. See, eg. J. W. Harris, Lagat Theorses (London, 1960) 1-5,
88-89.

‘TueoRIES oF Istamic Law 3

‘* What is Islamic law?

‘© What is the structure of the Islamic legal system, as it emerges from
the works of the earlier jurists? Would this structure be viable today?

¢ How was the law derived by the earlier jurists from the sources of
peer geile dct geese ae sci f
what will be the methodology of the modern judge in discovering
and applying the law??

© Who was authorized to declare a law as Islamic, that is, how was
the validated? How will the law be validated as Islamic in the
modern age?™

. ‘Was athe scope of thls lew? Doss it gover each spat fs Mastin

‘oF is it limited to what ia contained in the books of figh?

# If applies to all legal activity, then, why was there, in Islamic legal
hutory, 8 separation between the functions of the Muslim jurist and
the legislative and judicial functions of the Islamic state?

‘* What fundamental rights have been granted to Man under Islamic
law, and how is justice according to law to be secured?

Books on upul ai-figh, written in modern times, whether in Arabic
or in English of another language, do not answer all these questions,

Sie Staines daha te ee Seeatng sal enatlng satan
waually quote the tradition of Mu'sdh ibn Jabal, The tradition ax quoted
In Seman Abs Dactdin. "When the Apt of Ah intended to peed Mah om
Jabal to the Yemen, he asked: How will you jadge when the occasion of deciding
a case arises” fle replied: | shall jodge in accordance with Allth's Book. He asked
(What will you do) if you do mot find guidance in Allah's Book? He replied: (1
will act) in accordance with the Sunnah of the Mesenger of AUAh. He asked
(What ill you do) if you do sot find guidance io the Sunnoh of the Apostle of
‘Allah and in Allah's Book? ile repbed: 1 shall do my best to form an opinion
and spare no pains. The Apostle of Allah then patted him on the breast and
said: Praise be to Allah Who helped tbe messenger of the Apostle of Allah to
find 4 thing which pleases the Apostle of Alih.” Sunan Aba Déwéd, te. Ahmad
Hasan (Lahore Sh, Muhammad Ashraf, 1984), ai, No. 3585, 1019. The broad
methodology based on the tradition of Mu'adh ibm Jabal is essentially correct,
but in somewhat simplistic when viewed in terms of a modern legal system. Al-
‘Ghazalt (4. 505), for example, says that one should first consult ima” (consensus
cof opinion) for settled principles. It is customary with the fugaha" to quote thir
{radition in support of the use of reason in matters of figh or shart'ah.

"For a layman, the law laid down by his school is valid law, This is fine as fas
1 personal Lae is concerned, but what is valid Jaw is the public sphere is an iasuc
that in not clearly settled.
oh

4 Introduction

‘or at least they do not answer them watel
Sathael iy oor rks in Arabic, are devoted to a description of the
site seein ieee eer ae
in itself and was first followed jurists, it is not sufficient,
alone, to equip the student or the lawyer with skills that will enable
him to derive the law in the present age, let alone practice it within
a modera Jegal system. Much more needs to be done.
‘ needs to be developed by
|. This theory must answer and

Islamic law must first understand and analyze the work of earlier
uslim jurists, and then attempt to relate their analysis to the cir-
‘umstances obtaining today. Such works should not be undertaken in
isolation, and these scholars must discuss and debate the important
issues. It is to be acknowledged that some scholars have undertaken
comparative studies of Islamic legal theory, where similarities with
‘Western law have been indicated, yet, a broader theory that encom-
pastes the whole gamut of interpretation in the light of modern needs
cannot be derived from such works. We have attempted a first step
this direction in this book, in the hope that others will partici
the process and thus contribute to the development of a
wry of Islamic law that will explain the whole enterprise of in
‘ation and define some strategies of Islamization for the p1

ton, 1981); Die Zéhiriten: thre Lehrayatem und Dhre Geschichte (Leipaig, 1884),
‘This has been translated Wollgang Behn, The Zahirts (Leiden, 1971) (The trans
{ator has corrected « number of errors in citations and follows a modern method
of transliteration). See also Joseph Schacht, The Origins of Muhammadan Ju-
rigprudence, rev. ed. (Oxford, 1953) (hereafter cited as Origins); Introduction to
Jslarnic Law (Oxford, 1964) (hereafter cited as Introduction). In addition to these,
there is & large number of articles written by Schacht and Coulson om various top-
‘cs. Some other scholars have also written important articles om the field, There
are many other books on Islamic jurispredence, bat those mentioned here are
the early authoritative books that established a pattern followed by later writers.
‘The same pattern is stil in vogue.

Tusories oF Istamic Law 5

This book, therefore, differs from those written, in English or
aati, a motes Main, scenes ta Has espects. First, it at-

Ba oes bee hae tie ote Second, it does not
al-figh as 2 common legal theory, as is
portrayed by many modern books, and is maintained by Western
scholars, though for different reasons. On the other hand, it treats
deriva
o . Each approach or theory has a
distinct function to perform in the modern age. Third, this book at-
tempts to show how the theories of Islamic law may be applied today
to nerve and develop a modern legal system. The reason why we have
to treat the subject of ussil al-figh in this way is based on our
viction that the form in which the subject is presented by Mus-
scholars of the present times is of limited benefit to those dealing
ith English common law. Similar observations have been made by
others too.* This is not to say that books written by modern
ars are not useful at all. Indeed, these books may be highly usefal i
countries where the obtaining legal systems are based on
civil law.

Nevertheless, we have retained, as far as is possible, the essence of
the ‘books of upil l-figh are written,
80 that the reader accustomed to them may not feel distracted. This
pattern was ;

(d, 757), and is followed with some modification by modera books
written in Arabic. Sadr al Shari'ah divided

jodern books discuss the hukm shar‘ first. We have done the same.

The structure of the book, which is divided into three parts, dif-
fers in certain other ways as well. After two introductory chapters
highlighting a few major themes and the meaning of ural al-figh, the
first part deals with the hukm shar, which is a discussion of the
concept of Islamic law.

ww. A description of the sources of Islamic law and the rales
of literal construction has been kept to a minimum, as these are well
known and can be gathered from any book on Islamic jurisprudence,

“See Riarul Hasas Gilani, The Reconstrection of Legal Thought on Isiem (Ia
hore, 1974) iv.

6 Introduction

‘yet points deemed essential have been woven into the description of
the theories. Where it is felt that some readers may need more ex-
planation of important sources, terms, or rules, the details have been
moved to the footnotes. The third part deals with the methodology
through which the legal system may incorporate and employ, in the
‘present age, the theories of interpretation that are the subject-matter
‘of the discipline of usil al-figh.

As we have endeavored to develop a theory that explains the
various aspects of Islamic law mentioned above, some of the ideas
expressed may appear new to the reader, who is accustomed to tra-
ditional books. Most of what we have stated is based on more than
a decade of research and study of this law, and we invite such schol-
ars to propose better explanations or theories, and to amend and
improve the ideas presented here. The effort, as stated earlier, is to
generate fruitful discussion so that the collective effort-of Muslim
scholars may yield a system that can easily translate the ideals of
Islam into an efficient modern law.

Chapters have been numbered consecutively throughout the
book, irrespective of the division into parts. The system of translit-
‘eration for Arabic adopted here is based on the one followed by the
American Library of Congress. The reader may, therefore, notice
some differences from the transliteration system to which he might
be accustomed. For example, iyy is represented by fy. Thus, Ibn
‘Taymiyah instead of Ibn Taymiyyah or Ibn Taimiyya. Footnotes were
preferred in this text for ease of referrence. These have been num-
bered separately for each chapter. Wherever the name of the Prophet
is mentioned, the words “God's peace and blessings be upon him,”
are intended to be implied without having been specifically recorded

in the text, as is the usual prayer for all his
1 would like to thank 0 has been very
kind to me in s0 many ways. e manuscript twice and made

very useful suggestions with respect to content as well as style. I am
also grateful to him for having agreed to edit and publish this book.

Chapter 2

Major Themes

Upil al-figh has been called Islamic legal theory on the analogy of
modern law. Like legal theory upil al-figh answers the questions
“What is law?" and “How do judges discover and apply the law in
hard cases?”® But the analogy ends here. |

al-figh ays
discovering and applying the law

. Thus, there is a difference in function and approach. The
This, at
least, is t!
In response to the question “What is law?" pal olfigh explains

legal systern. It describes in detail why the law is analyzed into dif-
ferent categories and how the interaction of primary and secondary
rules takes place. Comprehension of this structure is essential for
understanding the nature of Islamic law itself. On these issues, the
ground covered by upiil al-figh and general jurisprudence is common,

In the Islamic legal system, a8

to be is
. Usiil al-figh

‘Hard cases are those where the statute does not cover the set of facts presented
to the court, and the court haa to resort to the general principles of the law. For a
detailed discussion see R. Dworkin, *Hard Cases,” Harvard Law Review 8 (1975),
1087.

We will bave occasion to see later that this is not binding in Islamic law. Tk
is merely an assumption saade by later scholars Shea ell sale
methodology provided by al-Shafi't (4.

8 Major Themes

F NSaaerene eaten ca neers cea
AN It is, in fact, the heart of the subject for it tells us

how the rule is derived. It also explains why each school of Islamic
law! is a different system of interpretation that influences, by its
methodology, the outcome of the opinions reached In figh, that is,
the derived rule. In addition to this, it defines the area in which

qualified to do so. It, then, lays down its own system of stare decisis
through a process called taglid that informs us what opinions or
pas :

such a system of interpretation is absent or is not formulated,
@ vacuum ix created and the rules put forth as Islamic will not be
validated by the underlying rule of recogni ition of Islamic law.

tn Muslim countries, involved with ith the Talamiization Of laws, the
first issue that is faced is couched in the question: How to interpret
Inlamic law in the present age? It will not be an exaggeration to
say that any development in Islamic law today depends upon the
comprehension, development, and adaption of uyiil al-figh, In West-
‘ern systems a familiarity with legal theory is not essential to the
practice or study of law, but a systematic study of uptil alfigh is
‘@ necessity for all those who wish to practice, teach, of study Is-
Jamic law. It is unavoidable, particularly for those occupied with the
framing or application of Islamic laws in Muslim countries, and is
equally essential for non-Muslims occupied, for various reasons, with
‘the study of this law. If, however, one group that needs it most were
to be singled out, a group that must undertake a penetrating study
of this field, it would comprise the judges of the higher courts in
Muslim countries who are responsible for laying down the law and

its general principles.
The study of opal a;fgh must, therefore, have a purpose. It must
‘evolve a methodology and a system through which we can

help us

A school of law in the Islamic legal xystem is usually associated with the
name of its founder. This is true, at least, of the Sunni schools. A school of law,
besides being an internally consistent system of interpretation lends uniformity
to the law. It is generally known that Ubere are multiplicity of opinions within the
lalamic legal aystem. By following a school of law the follower accepts a uniform
version within this tich variety.

‘Pupories OF Istastice Law 9

validate all new laws as Islamic, besides converting the current laws.
‘The overall purpose has already been indicated in the questions listed
in the introduction, but the present book will revolve around certain
important issues. Focusing on these issues will not only help us un-
derstand the subject better and to remove some misconceptions, but
also provide us with an opportunity to identify the utility of this
discipline within a modern legal system.

To facilitate such a study, some of the important issues that may
be discussed in detail in this book are described briefly to attract the
attention of the reader. The first such issue relates to ijtihad.

2.1, Ijtihad through a grundnorm

Ijtihdd means striving to the utmost to discover the law from the
texts through all possible means of valid interpretation. The main
purpose of the subject of ugil al-figh is to teach the art or method-
ology of ijtihdd. This methodology is difficult, if not impossible, to
learn in « vacuum. For the purposes of this book, Pakistan will be
used as the model. The reason for this is quite natural for this writer,
but it is expected that the explanations provided will be of benefit
to all Muslim countries, especially those functioning under the com-
mon law. Examples, where necessary, will be based on judgements
rendered by the superior courts in Pakistan. After the methodology
of ijtihdd has been absorbed from the traditional literature, it will
‘be shown how a country like Pakistan is slowly adjusting to it, and
how its senior judges are gradually taking up the responsibility that
ultimately will be theirs, along with the lawyers who cooperate with
them. Their methodology for validating the law vacillates between
a grundnorm and a rule of recognition, sometimes benefiting from
both. The explanation of this topic is one of the aims of this book.

2.2. Is there a common theory of interpretation?

‘The study of ugal al-figh in modern times has fallen prey to rome
rigid and preconceived notions that have concealed its true nature.

such rigid notion that has taken hold in the Muslim world today
ths ieee jour chon ms mn taste osepectaen
that lawyers, judges, or Ty

In other words, they believe that they may follow a rule of interpre-
tation adopted by the Hanafis, for example, and at the same time

10 Major Themes

follow another rule upheld by the Shafi‘ school. Questions of internal
analytical consistency are ignored by the proponents of such a view.*
i ‘This notion has arisen from the apparent uniform nature of the
ubject. Pick up any book on usul written by Ssancien Jrets wad
‘you will find that it contains the statement:
of Islamic law. . ..” These books appear to present the discipline as if
it were a single uniform theory. This impression, arising from these
books, and the consequent notion prevailing among scholars, in the
opinion of this writer, has led to difficulties in
nature of legal theory in Islamic law. The t

one but several theories of interpretation in this law.
of the jurists can only be understood by- appreciating the detailed
- principles preferred by each school

of Interpretation in no way indicates

bt or tension within the Musi wnity. On the other hand,
) re

f ‘The desire to consider uydil al-figh as a single uniform theory has
also led to

in modern times to deal with new situations. The clearest example

of the vagueness that surrounds the issue of interpretation is the

proposed use of the principle of maglahah.* The principle is advocated

With great fervor, but there is no explanation as to how it is to be

judge, or how it fits into the general scheme of

. Maslahah can only be
if its relationship with this theory is clearly understood.®

things.

‘The idea that there is a common legal theory is not upheld in
the Muslim world alone; it is also maintained in the: West. Western

ined to reconcile the principles of various
“schools. Yow hy hrc i ap ‘Cat all some jurist bas
the law of that of jurisprudeatial interests. This theory, however, is not the same
ss the imaginary “classical theory of law.”
“Erroneously referred to either as “public interest” or as “stility.”

. owen
Ghazals theory and the principle of maglahah will be explained in detail in Part
2

Tueories ov Istamic Law nh

sciclars insist that there is one theory known as the “classical legal

theory.” They also claim that this classical theory has nothing to
ara ike etl demapecior law as by each
school. This view was has been
maintained ever since by several Western scholars. He said: “Com-
mon legal theory, the discipline of usu al-fikh, has little relevance
to the positive doctrine of each school.”? The truth is that there is
hardly such a thing as a “common legal theory." It is only a fig-
ment of Schacht's imagination. As there is no common legal theory,
jit obviously cannot have anything to do with the positive doctrine
of each school, or any school for that matter. It is the separate and

to merge or combine two systems of interpretation would lead to a
new theory of interpretation. This would be permissible only if the
new theory is developed as a whole and is also internally consistent,
Such attempts have been made in Islamic law, though the jurists ad-
vancing their theories have rarely claimed that they were proposing,
new theories outside their schools. There is no restriction, however,
and there has never been one,

competent jurists.

Vrain apace popr carer paren AF aad
of a presented in the fifth century is that of the theory
theory that has not been put to"

proposed by al-Ghazall (d. 505), a
Practice as yet.!°

Introduction, 60. By positive doctrine he means the law stated in
the books of figh.
"This will be explained in detail in this book.
"New theories are expected to emerge in the present times through the collec-
tive efforts of scholars, judges, and lawyers,
It promdes

This
‘answers that have long been sought by modern Muslim writers.

n Major Themes

‘The second part of this book will be devoted to the explanation of
these thearies, and to the removal of some misconceptions that have

ce ehcp

justice according to the shari‘ah.
2.3. Separation between theory and practice?

‘An idea that bas taken hold in the West is reflected in the doctrine of

that is, the law expounded
‘by the jurists and the practice of Muslim rulers or the state over
the centuries. The idea was advanced by scholars like Weber and

Schacht, and is avidly pursued by many scholars today. A student
of Inlamic legal history cannot fail to notice that Muslim rulers did
establish institutions like the mazilim courts, the office of the ‘émil
l-séq, the institution of hisbah, and some others." It may appear
strange to some that the early Muslim jurists never discussed these
institetions in their regular manaals of law. It is only seldom, and

that too as
ote ear ec of pe Tsndtr oor

scholars that Muslim jerists and the state were apparently going their
‘These writers have assumed that institutions and laws
Rett elec the
Even the taxes imposed by these rulers are deemed to be
extra-shar‘t In other words,
they designate the laws made by the ralers as secular.

to the rulers. As there were no political parties, it is assumed that
‘opposition groups gathered around the jurists to give vent to their

It is possible that all this may have happened on some occasions,
but there is no concrete evidence for these assumptions, that is, for

"14 was Sint ab Mawenrdl and then The Khaldin who described thewe institutions
in some deta.

The only books that discs the ssthority of the ruler or the state are books
‘ithed ot Abbie at Sultemspah These books do sot have the status of regular
‘mamaal of lew. The doctrine of sopinah is mentioned in later books like those by
‘Toe Taymiyah, Tbe ab Quyyim, and Tarthalust.

‘YHEORIES OF IsLaMic Law 13

the assumption that the laws and institutions established by the
state were not valid according to the principles of Islamic law or the
shari“ah, or that the law laid down by the fugaha” always developed
im opposition to the ruling group. Had this been true, the attitude
of confrontation would have emerged in some form in the law. There
is, as has been stated, no evidence in the law-books of earlier
about the legality or illegality of these institutions, or even a hi
of some kind of confrontation between the rulers and the jurists. O1
the contrary, there appears to be perfect harmony between
‘Yet, the early Muslim jurists avoid all discussion of these institut
and laws, as if they were outside their jurisdiction or domain, T!
desire of Western writers to identify such a separation between
and practice appears to be based on identifying and relating U
development with a parallel development in Roman law. There
no justification for this,

|, are wont, on the whole, ei-

ther to’ ignore this’ isawe ‘completely and not to address it, or they
assume that these institutions, established by the rulers for

the

ministration of justice, were @ part of the regular shari‘ah law. The
latter writers give the impression that there was no separation be-

tween the writings of the jurists and the judicial activity of the state.
Perhaps they base such conclusions on the writings of later writers

like Ton ‘Taymiyah (4. 728 A.H.) and im (4, 751 AH.)
The Pets i hoary cites
n

ts. In addition

| Ori ing the

| consequences of such agreement.!* A recent book written on Islamic
Jurisprudence, though presenting the traditional Islamic point of view
with the writings of Arab scholars throughout the book,
has the following statement to make in the preface:
[Ujpal ab-figh bas for the most part been developed by the indi-
vidual jurists who exerted themselves in theit
away from the government machinery and involvement of ju-
istic thought. Consequently, ust al-figh has to some extent

“Such conclusions were drawn by Max Weber, through as apparently superfi-
cial study of Islamic law, and Schacht followed him—almost blindly.

"See, eg, Mi Hashim Kamali, Principles of Islamic Juruaprodence,
(Avosaling Jara: juk Publications, 1989) xvii

ul Major Themes

irariounwacheneteeeeainenae ai
lamic jurisprudence is marred by s polarization of interests and
values between the government and the ulema. The ulema dis-
ion with the government did not encourage the latter's
and involvement in the development of juristic
thought and institutions, and this has to some extent discour-
aged flexibility and pragmatism in Islamic jurspredence. ..
‘The government on its part also did not encourage the ulema
involvement and participation in its hierarchy and isolated it-
self from the currents of juristic thought and the scholastic
expositions of the lems. The schools of jurisprudence contin-
wed to grow and succeeded to [sic] generate a body of doctrine,
which however valuable, was by itself not enough to harness
1¢ widening gap between the theory and practice of law im
wwernment.!®
Notwithstanding the erudition of the author, it must be pointed out
that the statement implies that not only is the Islamic law derived
by the fugaha? righ

. This Is exactly what Joseph Schacht
hhas said, both

». The only difference between this statement and those made
by Western scholars is that the learned author has not said that the
laws and practices of the Muslim state were secular in nature and
that the taxes im, by the st

), when the law had attained
Some of the areas of law discussed in thé early works of
e Hanafi jurists, for example, were later to fall within the exclusive
lomain of the state. The separation appears to be complete by the
). Does all this mean that jurisdiction over

ity of
Definitely not, The arrangement appears

ies, that

'STbid. Emphasis added.

Taronies oF Istamic Law 15

is, the jurists and the rulers. The assumption for purposes of this
book is that a separation between the functions of the jurists and
the judicial activity of the state was achieved in perfect harmony,
Indeed, this is a unique feature of Islamic law.

‘The agreement, as gathered from the works of the jurists, ap-
pears to be that the fugahd’ would have jurisdiction over the area

of law that could be derived directly from the texts, an area that /

ay

was a permanent part of the law, while the state would make laws,

under the power of ijtthdd available to the ruler, in areas where the
law was likely to change with the times, or in accordance with the
policy (siydsah) of the rulers. In other words, the jurists devoted
their energies to the eternal part of the law that would never change,
whether the state was secular or Islamic, because it was a law that
was derived directly from the texts of the Qur’én and the Sunnah, a
law that could, except for hudid and gigas, be practiced as personal
Jaw even by Muslim minorities. This practice appears to have con-
tinued right up to the Ottoman times in Turkey, and up to the time
of Awrangzeb'® ‘Alamgir in India.

In contrast, the law made by the state was also based on the
shariah, but it was derived general in most cases
rather than from specific texts of the Qur'an and the Sunnah, West-
ern writers are still making efforts to show that the law codes laid
down by Ottoman rulers had nothing to do with the shari'eh, but
here and there a statement appears stating clearly that this law was
made in accordance with the principles of the shari‘ah and with the
approval of the Shaykh al-Islam, the leading jurist of the times. In
fact, wherever a discord between the gdntn and the shari’ah was
found in Ottoman times, an effort was made to achieve harmoniza-
tion. Consider the following quotation from a firmdn as recorded in
a book written on Ottoman criminal law by Uriel Heyd:

It is also highly perilous and most sinful to juxtapose the
[] shari“a and gandn. Therefore in firmans and decrees all
matters shall henceforth be based on the firm support of
the noble sharia only. (Excerpt from a firman of Mustafa
TI (1695-1703))'7

“The Arabic transliteration of this same as Awrangrib is being avoided
intentionally.

"Gee Uriel Heyd, Studies in Old Ottoman Criminal Low, od. V. L. Ménage
(Oxford, 1973), 154. See also "AysY, Hags'ig al-Haga'ig ff Takmilat al-Shogs'ty
for some ideas on how the sharf'ah and glndn were harmonived in Turkey.

16 Major Themes

‘The question is whether such laws of the gandn, that were harmo-
nized with the shari‘ah, are binding on later ages? The answer is in
the i

‘Working on the basis of the assumption that the agreement be-
‘tween the jurists and the state was achieved in a spirit of cooper-
ation, the logical conclusion would be in

rT . One

}. The flexible

sphere revolves around the permanent and fixed sphere and draws,

or should draw, its principles and inspiration from the inner sphere.
The

to be a mujtahid (a qualified jurist), is responsible for the flexible

and changing sphere. If the ruler (imam) develops the law and lays

down a policy in accordance with the inner sphere, Tarabulusi, the

author of Mu‘in al-Hukkém calls it siydsah “ddilah or administration

of justice in accordance with the shari‘ah. If the ruler violates these

principles, he calls it siydsah zdlimah or tyrannical administration, !*
1!

a
» Further, the idea of
wo spheres of law is merely conceptual, it does not imply that there
a separation or division within the legal system itself. Indeed, the
w must operate as a single body of rules, based on the shari‘ah, in
ne seamless operation.

As soon as we make the assumption that there are two distin-
guishable conceptual spheres of the law, one permanent and the other
changing with the times, we discover a powerful tool with which to
analyze the structure of Islamic law. Islamic law begins to appear
in a different light; it changes into a system that has not only been
effective in the past, but can function with a little effort even today.
In fact, many of the views and opinions of the earlier jurists assume
anew meaning.

All this may be true, bat is there any evidence suggesting the
existence of two cooperating spheres of Islamic law? The answer is

“See Tartbalust, Mu‘tn ol-Hukhdmm (Btlaq, n.d.) 1.

Turories oF Istamic Law 17

The
Islamic law itself. An explanation will be provided later in this book,
at the end of part one. It may be mentioned though that while this
explanation has been woven into the traditional pattern followed in
this book, it would be possible for those who are not interested in this
explanation to skip this material, if they so desire. It is felt, however,
that this is an important question and needs to be analyzed and
answered.

2.4. The problem of rights

Another point that has not been misconceived so much as it has been
neglected by modern writers is the question of rights in Islamic law,
ic law revolves around a system of rights. These rights are dis-
sussed by some scholars today, but not in a way Muslim jurists, at
it the Hanafi jurists, intended them to be understood.

the detailed system of rights upon which the Islamic legal system is
structured is a prerequisite to the study of Islamic law. The different
Kinds of rights operating in Islamic law will be explained in detail in
this book. The question of human rights in Islam, however, requires
detailed explanation, which we intend to provide in another work on
the philosophy of Islamic law.

2.5. Disciplines related to ugil al-figh

Tare are catia dinhlins that re ntertwisnd with saab,
When we consider these disciplines in the sense of Islamic legal the-

ory, however, it is not possible to separate these subjects, and they
have to be considered a part of upil al-figh. These subjects are al-

8 A.H.), but the discipline itself
the Hanafi jurists,

part of this book that deals with legal theories.

eRe aes

Tha ecoad nile, Een sa fer, isthe ato datinenih) tn
"ing cases. It is an art with which the modern judge trained in the

f*

18 Major Themes

The credit for this goes to the Maliki
, but again this does not mean that he is the author
of the field it: because he wrote a book on the subject.

a au ‘@ book. It is assumed that just
because there was no book.on a subject the discipline itself did not
exist, This

. The classic case is that of Islamic legal theory itself. The
tire discipline is attributed by some to the great jurist al-Shafi'y
because he wrote the first book on the subject. Does that mean that
there was no legal theory in Islam before al-Risdlah appeared on the
scene? It would be incorrect to assume that there was none. As long
as Islamic law existed before him, there had to be a legal theory. True,
this theory would be somewhat different from the one expounded by
al-Shafi'T, but it did exist nevertheless.
‘The purpose is to emphasize that

many sub-branches tends to conceal the global picture, a picture that
is extremely important for understanding a Jegal system as complex
as the Islamic, This brings us to the observation that Islamic law
is indeed complex, and its legal theory is even more difficult to un-
derstand. It takes years of study to understand its basics. It is for
this reason that an effort has been made to present the material in
a simple form. This implies that some of the finer details may be
missing and the interested reader will have to work on his own to
discover them.

Chapter 3

The Meaning of Usil
al-Figh

‘The same definitions, however, may be widened
slightly to apply to the flexible part as well, The focus of jurists, as
has been stated earlier, was on the part of the law that was stated
explicitly in the texts of the Qur'an and the Sunnah,

\joyed by delegation, Thus, there can be no doubt that the first
jour Caliphs were full mujtahids. Some later rulers have also been
by the jurists to be mujtahids, Today suck a qualification
‘obviously be enjoyed by delegation.

“To explain the matter in a little more detail, we may say that
the focus of Muslim jurists dealing with the fixed part of the law was
more on the , while
the
these evidences. Thus, the Muslim jurist was occupied more with the
juz or the specific evidence, while the state was to use the kulli or
the general evidence. Having said this, we may note that both the>,

ist and the state could use either type of evidence, the specific

well as the general without restriction. Because our purpose here
ia only to identify the broader trends, we may assume for the time
being that the Muslim jurist focused on the juz't, while the imam

2 The Meaning of Usi al-Figh

employed the kullf for the derivation of the law. It is with this in
mind that we may approach the definition of uss al-figh provided
by the jurists.

3.1, Usiil al-figh defined

‘The meaning of ugil alfigh is explained by the jurists in great detail.
They split up the term into two parts and define or explain these
components separately. Once the constituent parts are defined, they
combine the two parts to arrive at the definition. It would certainly be
easier to skip this definition and explain the meaning of the discipline
in simple terms, but we feel that the reader is entitled to understand
the language of the jurists directly. We will, therefore, proceed with
the definition provided by jurists. Once this has been done, we will
provide a simpler explanation.
The used by the fugahd’ (plural of fagih: jo-
rist) is what we call genus-species definition, a method that origi-
nated with Plato and Aristotle.’ It is not considered very effective
in modern times, but to undetstand what the fugahd’ said we must
use the method they wanted us to. This method, which is one of the
most common, consists in the selection of a word called definiendum.
This word is first set into ite genus (class) and then distinguished
from the other members of the class, Most definitions formulated by
Muslim jurists are based on this pattern.
‘The term updl al-figh is composed of two terms: wad! (pl. of asl)
and figh. The jurists usually define the term figh first,

3.1.1, The meaning of figh
The literal meaning of f¢h

The term ”
and in this sense the . It,implies

term ‘idm (knowl-
edge) also gives , and in the

‘There is an elementary distinction in philosophy between the definition of a

word and that of ax eatity. Definitions of words ate called nominal definition,

While those of entities, that is, concepts, objects etc. are called real definitions.
*The word has been used in the Quin on severg! occasions:

Sas 5 ills 58K 9 pa TA
What bath come to these people that they fail to understand a
ingle fact. [Qur'ss 4: 78};

‘Titgoates of Istamic Law 21

there appears to be no difference in the two terms. Later, as sophis-
tication crept in, the term ‘ilm came to be applied in a narrow sense
to mean knowledge that comes through reports, that is, traditions:
hadith and dthar. The term figh, on the other hand, came to be used
exclusively for a knowledge of the law. Thus the terms ‘ilm and figh

Similarly, Ie tae ieee ad me ea aa ke
prectuo poac toa 218 A.H.). Figh till such thme embraced both
ul and legal issues.* Abi Hanifah (d. 150 A.H.)

Gels OG a51S 5 oF “a person's knowledge of
his rights and obligations."* Abé Hanifah is said to have applied the
term al-figh al-akbar (the greater understanding) to ‘ilm al-kalém,

by Sat Vg a 2
‘They have hearts wherewith they understand not. (Qut’in 7: 179)
‘The same meaning is reflected in the words of the Prophet:
Call pa Uae Dla oo
He for whom Allah wills His blessings is granted the understanding of din,
[Sabih Muslim: Kitdb al-Amarah}

"Sen, © jad Hasan, The Early Development of Islamic Jurieprudence
(aamabed, ioe “I tebe ned that ‘fom the vary begining caried
ef hacedge that came through on utheciy—it may be God or the
Promiet" Td 8
“Tid. 3

"See Sadr abShast'ah (4. 147 A.H.), of-Towdth fF Ball Jawamid al-Tongth
(Karachi, 1979) 22. Explaining the definition given by Ab@ Hantfah he says that
it includes three things:

1. knowledge of the tenets of faith;

2. knowledge of ethics and mysticiam (leyowwuf), and

3. knowledge pertaining to acts.

‘The first is covered by ‘iim al-kalam, the second by ethics and mysticiam, and
Ube third by figh. Ibid. 25. Thus, he says, if you wish to confine the definition to
figh alone, that w, al-figh al-asghar, you most add at the end of the definition the
word ‘omalan Ibid. The definition would then become:

(9 le OG IS

‘A person's knowledge of his rights and obligations {with
respect to his acta). Ibid. 22.

n The Meaning of Usil al-Figh

implying thereby that figh pertaining to acts is al-figh al-ayghar.®
The subject of kaldm was introduced by the Mu‘tazilah during the
time of al-Ma’mén and the term figh came to be restricted to the
corpus of Islamic law. It is in this sense that we understand the term
igh as will be obvious from the definition given below.

‘The technical meaning of figh

Tthas been explained above that the word figh was used in the early
jays in a comprehensive way to include the tenets of Islam, ite ethics,
‘a ui ing oh el pt
ings for which the term tagawwuf subsequently came into use. In
ite technical sense, however, it was restricted to Islamic law alone.

Tohi wach an application the term igh wee defined aa follows:
bee Sap RAC hele cl (Le My fall
This may translated into English ax:

Roos

3.1.2. Analysis of the definition

In order to comprehend fully the exact meaning of the term figh
‘an analysis of the above definition is required. Each word used is
intended to affect the required meaning and to sharpen our under
standing of the t ined.
1 segment e” identifies the genus we are
dealing with. The
hy rigin. If the definition
were restricted to this segment alone, figh would mean all‘and any

Abs Hastfah is attributed to have written book entitled al-Figh al-Akbar
dealing wish the tenets of faith. This i a very small book comprising « few pages.
‘A.commentary on this book was written by Mubammad iba Muhammad Maturids
(4. 944 or 8) Sharh al-Figh al-Akbor (Sayds: Manabirat al-Maktabah al'Asctyah,
(104-}). Its also said that Abs Hanifah wrote a book on usd! al-figh, but this has
‘ot reached us.

"The term adillsh ta/ytiyah has beea inteotionally translated here to mean
specific evidences rather than the ususal translation—detailed proals,”— which
\s likely (o confuse the reader. Its the specific evidences that are referred to in the
definition, as distinguished (rom the general evidences ot the adillah sjméliyah,

Tueortes oF IsLamic Law 23

kind of knowledge. In this sense it would co: its Ti 4
meaning. This wide meaning, however, is

word “ahkdm,” which exclude from the definition of figh all vinds
of knowledge that do not pertain to a/kim or rules. This is further
qualified by the term “shar‘s” and the meaning of figh is confined to
the knowledge of the shar't ahkam, Here we must
i rea

-ahkdm are of three types:

. Those that are rational, like 2+2=4, or the rule that the sum
is greater than its parts;

he ghayr shart

|. Those that are perceived by the senses, like tire burns or wood
floats on water; and

3. Those that are discovered through experience, like aspirin cures
headache.

All these are not shart ahkdm. In other words, they are the ghayr
shart ahkam and do not form part of the shary‘eh,” or figh for that
matter,

We have noticed that the first word used to define figh is al-'ilm
and it conveys fo us that “figh is knowledge.” The second word is al-
ahkdm which restricts this knowledge to that of rules, to the exclusion
of all other kinds of knowledge. The next word is al-shar‘iyah. This

farther wazrowe down the masalng of fight that of la rules and

“The term ghayr shar's does not necessarily mean egal, ax it might sqinetimes
imply in Urda, bot those rules which do not fall within the ambit of figh or
shart'oh.

"Modern Muslim thinkers who consider that there are disciplines, like mathe-
matics, physice and chemistry, that can be cast into the Islamic mold and called
“Islamic” may have an observation to make here, The classical jariats considered
these disciplines, as is obvious from the definition, to be outside the pale of the
‘thorfah. This would not mean that they are mot to be pursued. The question
whether such disciplines can be called Islamic or flourish within the matrix of the
shartah ie not relevant here. This definition will, therefore, not be used here to

m The Meaning of Uyil al-Figh

law. Figh then is the knowledge of the shar‘ ahkam. In order to
proceed further, we must understand what we mean by the term
shar ahkém. Shar't ahkém are of two types:

1, the ahkim relating to belie (;'tigdd) like the existence of Allsh,
His oneness, the truth of the mission of the Prophet, belief in
the Day of Judgment, and so on;

the ahkim relating to acts (a'mal). These are divisible into
three kinds:

‘© those which pertain to physical acts, like the acts of prayer
(saldh), or those constituting wilful homicide (gatl ‘amd);

© those which take place within the galb, like intention, love,
hate, or jealousy;

© those that relate to speech, like recitation during prayers,
or offer and acceptance in a contract.

‘The word used next in our definition is al-‘amatiyah, which quali-

edge of the shar't ahkam that affect conduct.
acts, acts of the galb, and acts arising out of the spoken word.!°

“The knowledge of the sbar't abkdm (legal rales) in fact relaten to the khijab
(commonication) of AUS. The usw (rule) {rom thie aspect is divisible into two
Ainds:

1, that which dows not depend on the shari‘sh for ite attainment, like belief
in God, of belief in the truth of the mission of the Prophet;
2. that which is dependent os the sharf'ah for its content.

‘This is further divisible into two kinds:

| Ghat which ia nasort or theoretical like the justification that gman
& hugh (proof) or guyas is & hurjah;,
© that which relates to ‘omal (conduct).

Here again we may notice that the emphasis is on ‘amel or conduct, and on
(he rales related tot. The important peat to notice fe thet the dacemicn of the
justification of sources of law like ijond” and giyds, whether they are a valid proof
oo hujjah, takes ample space in modera books os usil alfigh, but such knowledge
is considered theoretical or nazar by the jurists. In this sense, once a source ie
accepted a8 valid proof, it does sot affect the discipline of applied upd al-figh,
which is being emphasized in this book.

Tugories oF Istamic Law 25

‘The use of the word al-‘amaliyah will confine the definition to the
knowledge of ‘amali rules alone.

‘The definition is further qualified by the use of the word al-
spabieaatehy ubich, mene hestved ae somrieed lired. The employment of
this ludes from the definition of figh the following types of
knowledge of the shar'é ahkdm:

1, knowledge of these ahkdm that rests with Allah Almighty;
2. knowledge of the ahkdm granted to the Prophet;!?
3. knowledge of the ahtdm granted to Jibrit (Gabriel).

‘These three types of knowledge are not acquired and, therefore,
are not included in the definition of figh. On the other hand, there
are two types of knowledge that are acquired: the knowledge of the

‘At this stage the definition is qualified further with the term adil-
The specific evidences are primar
|. whether of the Qur'an or of the Sunnah, The def-
inition, stated above, still includes two kinds of derived or acquired
knowledge: the acquired knowledge of the fagih and the acqui
knowledge of the mugallid, The use of the term

‘The reason is that the layman does not acquire his knowledge of figh
directly from specific evidences in the Qur'dn and Sunnah, as does
the fagih; the mugallid acquires his knowledge of figh from the jurist.

The defintition of figh explained above began by first encompass-

ing all knowledge within it, and then sy: ose
types of knowledge that do not form part of figh. The final form
the definition declares figh to be that knowledge of the rules of cor
juct that has been derived by the from specific evidences
It would be helpful for the reader if afew distinctions are drawn.

First, the definition indicates that there is a difference between the

‘The jurits discuss « situation where the Prophet may be considered to have
exercised itihad, This, in their view, may affect the binding force of such a ruling.
It appears to be an idle distinction, ss it would be very difficalt to separate it
from the Sunnah

26 The Meaning of Usil al-Figh

‘ah includes both figh as well as the knowledge of the tenets
th that ty the ‘at. ‘The real distinction between shari‘ah
|. however, is th , while figh is 0

There appears to be some distinction in later times between the
terms mujtahid and fagth. Our definition of figh does not make this
distinction, because both terms are applied to mean the jurist who
derives the ahkdm directly from specific evidences. In later times, the
term fagih came to be applied to the jurist who derived his knowledge
from the manuals of figh, which contained the opinions of the muj-
tahids. Such a person does acquire the knowledge of the previously
derived ahkdm, but according to the definition he would be classified
as a mugallid.

Does this definition of figh apply to the fixed sphere of law alone,
or does it cover both the fixed and the flexible spheres? In other
words, does the definition apply exclusively to the activity of the
jurist, who derives the law from specific evidences, or does it alo
cover the legislative activity of the state, when the state may be
relying more on general principles of Islamic law, especially when
the general principles employed are derived by the jurist or judge
and are not stated explicitly in the texts? We have stated above that
the fixed sphere of the law Kas grown out of, or has been derived
from, the specific evidences, The definition talks about the specific
evidences alone. The application of this definition will become clearer
after we have analyzed the meaning of the term asl, the plural of ugiil,
‘We will now turn to this.

3.1.3, Ugiil al-figh

‘The meaning of ugil al-figh, as we have said, is arrived at by under-
standing the meanings of upd! and figh separately and they combin-
ing them. The meaning of figh has been explained above aid we now
need to know the meaning of ugil, which is the plural of agl.

‘The meaning of as!

The literal meaning of the term asl is “something from which another
thing originates.” Thus, the origin of a thing is its asl. That is the
reason for translating the word asl as “soot.” ie tec aia
means “something upon which another thing is constructed,” an

Sire plow tha peal 6f Shona alone ents casa the bee
aagl is used in the sense of the Arabic word “masdar,” which means

Tueorigs oF Istamic Law a

“source.” All these are the literal applications of the word op!. For
purposes of Islamic law, however, we are interested in the technical
use of the term.

‘There are several technical applications of the word agl in Islamic
law. Some of these are listed below:

1, The word agi is used to mean dalif. The word dali! was applied
to mean a guide leading a caravan, or scout finding the trail.
In this sense, a directory, like a telephone directory, may be
called a dalil, because it leads us to a number or an address.
In Islamic law, the word dalid is used in two ways: dalit tafgilt
and dali kulli or dattl ijméli, The former, that is, dalit tafsilt
is like an individual verse of the Qur’n or an individual Sun-
nah in a hadith."We may refer to it as * “specific evidence,”
though it is sometimes translated as “detailed proof.” For ex-
ample, the verse, “Verily prayers are enjoined on believers at
stated times,”!? is a specific evidence in the Qur'an that points

of Allah. As compared to this, the dalil ijmali or

because it

number of specific evidences. The Qur’én is a general evidence:
it contains a large number of specific verses within it. So is
the Sunnah, which contains within jt a large number of in-
dividual This use of the term dali! conforms with the

‘source.” Usil al-figh is a discipline that teaches us
law, It
what general evidences validly indicate or point to the

ahkdm of All&h. The discipline, therefore, teaches us how ijma*
(consensus of opinion), giyds (analogy), and others are general
evidences and validly lead to the ahkdm. The Setanta
deals with the specific evidence, or

. Tt tells us how individual jurists hae

their reasoning on specific evidences. In this sense, we

may refer to ugil al-figh as theoretical ugil and the science of
Khildf as applied usal.

2. The word agl is used to indicate the foundation upon which —
analogy is constructed. Thus, khamr is an asl or basis for the
prohibition of the nabidh (beverage) of dates, as the common
cause (‘illah) of intoxication is found in both, but is extended
from khamr, which is the asl.

45103

8 The Meaning of Usiil al-Figh

3. Agl is sometimes used in the sense of the original rule. Thus,

the maxim says:
ar
By Leg pot
‘The original rule for all things is permissibility.

‘The principle implies that all things are permissible, unless
specifically prohibited by the shari‘ch. The meaning of this
principle is explained in some detail in the next chapter. This
principle does relate to the methodology of the jurist, but is
not part of pul al-figh.

4. Finally, the term asl is used in the meaning of a general prin-
of

latter principles that we thea ate owl a We
will examine these principles in a little more detail

‘The qawa'id ugaityah

The term ups generally understood to mean “sources,” but for the
jurist it

texts. The use of the ‘source” in the Western sense of the term
conceals this important point. The principles of interpretation with
which we are concerned here are formulated by the Muslim jurists in
the form of general propositions whose major premiss serves as the
principle. Such a principle is referred to as a qd"idah ustiliyah, While
formulating this principle the jurist tries to ensure that the intention
of the Lawgiver is supreme. Thus, for example, a proposition may be
stated as follows:

‘The ahkém of Allah are to be found in the Qur'an. The Qur'an
is w source of law. Thus, each time a hukm is found in the
Qur’in it ia proved as the bukm of Allah.!?

‘The principle that emerges, and which is usually stated, is that the
Qur'an is a source of law. The emphasis, however, is always on the

"Sade abShart'ah, ol- Towgih, i, 45.

Tweortes oF Istamic Law 29

last sentence; namely, each time a hukm ts found in the Qur’én it is
proved as the hukm of Allah. The same is the case with the Sunnah as
well as ijma‘, when it is said that they are sources of law, the emphasis
is identical. The same emphasis is applied by the Sunni schools of
law when they are formulating a principle for giyés. Thus, when the
jurist maintains that analogy (qiyds) is a source of law, the emphasis
always be on the fact that “each time analogy is successfully used
discover the law (from the Qur'an and Sunnah) a hukm of Allah
discovered or proved.”"* This is so as gijds is merely a method of
liscovering a law laid down in the Qur'an and the Sunnah, and the

w is actually being proved from the two primary sources.

‘The jurist, in this way, arrives at

These

interpretation related to the four acceptable sources of the law.
are what we really mean by the term adillah ijméliyah referred to

above, that is, comprehensive sources that a
‘These four winpis Gee ike ey only principles used in this disci-
Bach school formulates principles for the additional sources

pline.
that it accepts and acts upon. The emphasis is the same as for the
first four sources with respect to the resulting rule being the hukm
of Allah. This body of rules or principles is known as upill. These,
jowever, are only part of a larger whole. A large number of such
inciples are derived from the rules of literal interpretation that are
part of upll, a subject that we shall discuss in the second part
this book in a little more detail.

3.1.4. The final definition

When the meaning of gaw@‘id usiliyah is combined with the meaning

of figh explained earlier, we arrive at the definition of uy al-figh,

This is stated very simply as:

Kasil D9 ype lel yA eM! aebl he Seg Plsbal >
This explains the meaning of ugiil al-figh as it is elaborated by

Muslim jurists, It will be helpful if we compare this meaning with

that of legal theory in secular or positive law, and try to relate certain
ideas in that discipline to those in ugul al-figh.

“Dbid.

30 The Meaning of Usill al-Figh

3.2. Comparison with legal theory

We have seen above that one of the major questions asked in gen-
eral jurisprudence or in legal theory is: How do judges discover and
apply the law? This gives rise to what are termed as theories of ad-
judication in law, Each legal philosopher may try to give his own
idea of how the mind of the judge works and operates upon the le-
gal materials available to him. Thus, Hart may have one view, the
Realists another, and Ronald Dworkin another. In Islamic law too
the situation is somewhat similar. The major question asked is: How

do Muslim jurists discover the law from the Qur'an and Sunnah and
apply it to the set of facts facing them? There are different views in
cin ieteetond These, however, have been

}, and are found today in

the ). Each school represents a unique answer to
the question posed. Each school Daalhs ova viey of eg, Masten
ree penne pe soe Each , therefore, presents

its he
There is a significant difference, however, between questions

eee hn esc ncaa ed eee difference
holds the key to understanding some of the vital issues in Islamic

legal history, and we will have occasion to examine this in part two
of this book. The difference is that or

w
what the judge should do. Islamic legal theory, therefore, poses the

ability to derive the law, while it is not so in secular or postive |
It may be pointed out, however, that treating legal theory as a pre-

requisite

es . Before him, the question was
bi : 'F ep : f
the Hanafi school.

"'Stated simply, it means one must kaow pil ol-figh before attempting to
undertake wtthad

‘Tugontes oF (stamic Law al

Some Western legal philosophers are not content with answering
this question alone. They ask further questions: What is the nature
of law? Why do we obey the law! What is the total concept of law?
Philosophers such as H-L.A. Hart have focused mainly on these ques:
tions, Some of the Muslim jurists, though not all, have also answered
these questions. In doing so they discuss the concept of Islamic law. It
is this concept that we will be studying in the first part, The second
part is devoted to answering the question: ow do Muslim jurists
discover and apply the law?

We may now turn to the examination of the hukm shar'i, which
means a role of Islamic law, but which is referred to in this book as
the concept of Islamic law, because understanding it in its various
manifestations means understanding the concept of Islamic law,

Part I

The Concept of Islamic
Law

Chapter 4

Law as the Hukm of Allah

‘The source of all laws in Islam is Allah and Allah alone. The verse
of the Qur'én,'“The hukm belongs to Alléh alone,”? is often cited
in support of this, This basic rule i

's laws alone that are acceptable to the Muslim and no other
‘ign or temporal authority can command his obedience. This
is the essence of social contract within a Muslim community. Each
Muslim agrees to be a Muslim not only because he believes in the
‘existence of one God and the truth of the mission of His Messenger,
but also because the laws are prescribed by the Wise and Just Lord,
and these laws grant him security from oppression and ensure justice
and falrplay in all dealings, A Muslim surrenders his will to Ixlam 80
that his life may be regulated in accordance with the hukm of Allah.

How do we reconcile submission to the will of Allah on the one
hand, and the authority of the modern states run on the basis of
constitutions, ostensibly subservient to the will of the people, on the
other? Does the constitution serve as the fundamental norm validat-
ing all laws and requiring obedience to them, or is it the Qur’in?
If the purpose of the shariah is to lay down laws in the interest
(maglahah) of Man, then, do human beings have the right to make
laws in accordance with whatever they deem to be their interest?
‘What role do human reason and natural law play in the framing
of laws in an Islamic state? If it is the shari‘ah alone that provides
guidance for the framing of laws, then, what about the countless new
situations over which the shari‘ah is silent? Finally, what is the ex-

‘Qur'an 6:57

38 Law as the Hukm of Alléh

tent to which the shari'ah is to regulate our legal system, considering
the fact that it is a “complete code of life’

We shall discuss these questions very briefly, and attempt to un-
derstand the position taken by Islamic law, or its jurists, on these
issues. A final answer may not be indicated for each of these ques-
tions,

4.1, The grundnorm

‘The fact that Allah alone is the source of all laws is in itself an in-
dication of the fundamental norm of the Islamic legal system, The
fundamental norm is repeated several times each day by every Mus-
fim, It is contained in the declaration: “There is no god, but Allah,
and Muhammad is the Messenger of Allah.” As the Muslim is ready
to accept the laws of Allah, he will accept only those laws that were
revealed through His Messenger. The revelation granted to the Mes-
senger is in the form of the Qur'an, and the Qur'an itself declares
the Sunnah of the Messenger of Allih to be a source of laws, or,
as is maintained by some, the Sunnah is itself a form of revelation.
Starting from the other end, the Muslim may say, “I am ready to
‘obey such and such law as it has been communicated to me by a
qualified jurist. I follow.the opinion of the jurist as it is in conformity
with the sources of Islamic law. I obey a law based on the sources aa
they are the sources revealed to Muhammad, L obey Mubammad for
he is the Messenger of Allah, and I believe in Allah.” It is obvious
that the public acceptance of this declaration makes the law of Allih
binding upon the person. Inner intention is of no consequence for the
imposition of the obligation after such public acceptance.
‘This norm is further extended by the words of God, “O ye who be-
eve! Obey Allah, and oboy the Messenger, and the dili'-amr among
u; and if ye have a dispute in any matter, refer it to Allah and the
Messenger, if ye are (in truth) believers in Allah and the Last Day.”?
According to the jurists, the “ are t
il ‘, for it is they who can help
¢ disputants to refer the dispute to Allah and the Messenger, that
, to the Qur'an and Sunnah. Even if the verse refers to “those in
thority” or the rulers, the first qualification for the imam or leader
‘that he be a mujtahid. The word “any” indicates that this applies
to all kinds of disputes, or to laws covering each and every activity.

Qur'an 4:59 Pickthall's translation with a slight change.

‘Tweories oF IsLamic Law 39

It is, therefore, not enough to apply the laws of Allsh in the areas
of marriage, divorce, and inheritance, and call the state an Islamic
state.

A fundamental question that arises from any discussion of the
basic norm relates to the validation of the law. Who is to decide that
a new law has been made in accordance with the principles of Islamic
law and is fit to be termed as “Islamic law"? Calling any provision
of the law as “Islamic” is a serious matter. Each provision of the law
declared as Islamic is considered, by the Islamic legal system and its
jurists, to be the hukm of Allah. All laws derived by the fugahd'from
the Qur'an and the Sunnah, whether directly or through analogy
(giyds), are assigned this status. Are the commands of the ruler to be
assigned such a status in a modern Islamic state? Will the laws passed
by the legislature be assigned such a status? In modern states that
have written constitutions a law passed by the legislature is valid if it
has been passed through a prescribed procedure and conforms with
the provisions of the constitution. All laws not conforming with the
constitution are declared unconstitutional, by the courts of law, and
hence not valid. The constitution, thus, serves as the basic norm, a
grundnorm, that lends validity to new laws. Most Muslim states now
have written constitutions. Surely, such constitutions in themselves
do not serve as the fundamental norm validating the law as Islamic,

In Pakistan, the basic norm described above stands translated
in the form of the Objectives Resolution. It was presented before
the Constitutent Assembly on March 7, 1949, and was adopted on
March 12, 1949. In Asma Jilani's case, PLD 1972 SC 139, Chief
Justice Hamoodur Rahman observed:

In any event, if « grundnorm is necessary for us, I do not have
to look to the Western legal theorists to discover one. Our
own grundnorm is enshrined in our doctrine that the legal
sovereignty over the entire universe belongs to Almighty Al-

lah alone, and the authority exercisable by the people within

the limits prescribed by Him is a sacred trust, This is an im-
mutable and unalterable norm which was clearly atcepted in

the Objectives Resolution.

In Zia-ur-Rahman v. The State, PLD 1972 Lah. 382, it was
deemed to be a supra-constitutional instrument, but in State v. Zia-
ur-Rahman, it was held that it is not a supra-constitutional instru-
ment; rather it enjoys the status of a preamble, having been incor-
porated as such, The Objectives Resolution was inserted into the

40 Law as the Hukm of Allah

Constitution of 1973 as Article 2A by President's Order No. 14 of
1985, There were suggestions after this that as the Objectives Res-
olution had become part of the Constitution (vide Article 2A), the
Resolution had acquired the status of a supra-constitutional docu:
ment, The suggestion in the words of the Court was: “Resultantly,
any of the existing provisions of the Constitution which conflicts with
its terms and is inconsistent or repugnant to its principles and pro-
visions has become inoperative and of no legal effect and can be so
declared by the Courts.”? This question finally came up before the
Supreme Court in Hakim Khan v. Government of Pakistan. Chief
Justice Nasim Hasan Shab held:

Accordingly, now if any question is raised in connection with
the validity of any existing provision of the Constitution on
the ground that it tranagresses the limite prescribed by Allah
Almighty (within which His people were competent to make
laws) such question can only be resolved by the Majlis-i-
Shoora (Parliament), which can, if the ples is well founded,
take the necessary remedial action by making suitable amend-
ments in the impugned provision in order to bring it within
the limits prescribed by Almighty Allah.*

‘The question of constitutional provisions having been settled, x
till remains to be seen as to w

1? The institut hat pclae ins
uch a function are the courts of law, and that is what appears from
the judgements mentioned above. This takes us into the discussion
democracy and majoritarian rule.

Laws are passed in democracies according to the wishes of the
people, or better still, the wishes of the majority. If such laws are
found to be incompatible with the injunctions of the Qur'an and tle
Sunnah, they can be struck down by the courts, as the courts are act-
ing within the mandate granted to them by the constitution. If this
is not acceptable to the people they can amend the constitution and
pass the laws they desire. In the Islamic legal system, it is obvious
that the people do not have the power to change the Qur’an or the
Sunnah, and they will have to bow before the courts and their inter-
pretation of the Quran and the Sunnah. Assuming for a minute that

*Hakim Khan v. Government of Pakistan, PLD 1992 SC 559, 612.
‘PLD 1992 SC 621 (Emphasis added),

a

‘Tueonies oF IstaMic Lay ee: 41

the people decide to pass a law that is incompatible with the Qur'ai
and the and the courts strike it down, would this process be
< coat

‘The question that flows out naturally from the jious disci
sion concerns the i
state, whether it is democracy, monarchy, dictatorship, or some ot!
method to be developed in the future. Muslims continue to de
this question. It is considered to be the domain of political theorists,

‘The Islamic state began, as is well known, in the shape of a
}). The institution existed in its proper ideal form
duting the period of the first four caliphs and thereafter changed

shot ae ona termed as mulk. It retained the
3 with the Es arsaprcatitieezy
center, the started usurping power, and

started ap ing ferent times in different places. In
the beginning, the caliph, in the interest of the unity of the Muslim
state, ratified the assumption of power by the sultén, This also had
the effect, in terms of law, of providing a legal cover to the illegal acts
of the sulfdns and of the legitimization of their rule. Throughout this
period, the jurists clung to the idea of a unifying caliphate, deeming
it essential for the legitimacy of government and the validity of legal
transactions.’ When the caliphate weakened further and'things got
completely out of hand, the jurists began to acknowledge “power”
as a justification for a legally valid rule by the sultans, Finally, the
caliphate was put to the sword by the Mongol hordes.

This ia an important point and needs to be emphasized, Many jurists clung
to the ides of the caliphate for a long time, even when in practice it had Jost all
power. The implication in the writings of these jurists was that the hilafoh was
the only form of goversiment that could be linked to the time of the first four
caliphs, a time that provides legal precedents for later times. In other words, they
insisted that a form of government that was based on as earlier
be maintained. This would make the goverament legal. Questions of
were, therefore, not important is themselves, bat because of the validity of legal
transactions. In their view, if the goversment was not legal, that is, not a khilafah,
the officials appointed by the ruler, incloding tbe qédt, would have no authority,
‘and all transactions validated by these officals would become null and void. For
example, all contracts of marriage, which are validated by the gadfor his delegated
authority would be void, and the people would be living in nin. This was stated by
al-Ghssils, while justifying the concept of shawkah (power), See e.g, al-Ghaasli
al Igtisad J¥ al-I'tigsd (Ankara, 1962) 234-41

42 Law as the Hukm of Allah

the jurists were forced
i, which

declared the and forms of government to
be of secondary importance. This was a contribution made by Ibn
“Taymiyah. The caliphate kept on raising its head in different forms
after this period, but it never enjoyed the same authority or legal
acceptance as the earlier caliphate. It was the Turks who finally abol-
ished it in 1924, recognizing legally a reality that had existed for a
Jong time.

‘Where does that leave the Muslims? Is a single caliphate neces-
sary for the functioning of the Muslim state? If not, will the Muslims
revive the caliphate? Is the form of government of secondary impor-
tance as long as the shari‘ah is being applied and is supreme? Does
Islamic law require that the Muslim states be democracies? These
questions appear to be settled in the minds of some, while others
continue to debate them. For the present discussion, however, it will
be assumed that the basic rule is that the shari'ah is to be supreme,
whatever the form of government adopted by the people in a Muslim
state. This conforms with the grundnorm stated above, The con-
stitution adopted by a Muslim state must itself conform with the
principles laid down in the Qur'an and the Sunnah of the Prophet.
‘Thus, in an Islamic state, the constitution itself should be validated
im the light of Islamic law, and that as has been determined by the
Supreme Court of Pakistan should be done by the people themselves,
through their representatives,

‘The judgments mentioned above are highly instructive in identi-
fying such issues and others besides them. We will have occasion to
refer to them again in the final chapter of this book.

4.2. The interest of Man
as the Lawgiver laid down laws in the interest (maslahah) of Man?
f

of istislah that seeks to secure the pees ar pe
protected by the Islamic legal system.®

. This will

Tweonres oF Istamic Law 43

serene meroreertaaete
There have been some’ voices

against it too, notable among them being the objections of the illus-
trious Imam al-Rasi (d. 606). He gave extremely powerful arguments

arguments are too complex and difficult to
be related in a rudimentary discussion. Al-Razi did concede though
that whenever we consider the laws and the interests of man, we find
them lying side by side, or existing together, yet we cannot establish
ackaoesl etibonohie kecuetn thes; that is, the laws are laid down
becaune they serve the interest of man. Let us attempt to explain the
problem in a simple way.

‘Take the case of a factory producing something. The sole purpose
of the existence of this factory is the creation of a product. Every
directive that is issued to the workers is intended to enhance the
quality of this product or to create it on time, or to create a product
that is more useful. The factory does not exist for the workers, but
for the creation of that product. The effective production of goods
requires, however, that the interest and welfare of the workers be kept
in view, for that will lead to a better product. If a worker performs
well he is rewarded or promoted, because he is in harmony with the
process leading to the ultimate product, If he does not perform well,
he will not be rewarded and may also be punished for breach of
discipline. The factory does have laws to regulate the activity of the
workers. These laws are laid down primarily to ensure an effective
production of goods, though the laws may indirectly serve the interest
of the worker,

cage premglr cane te tian ae gaan Lee or is
the purpose of this universe something larger, larger than Man?

fails Lagat

‘What! Are ye the more difficult to create or the heaven
(above); (Allah) hath constructed it.?

Man is the sole purpose, then, all laws must have been made to
his interest, On the other hand, if the purpose of the creation

f the universe is something other than Man, then, is Man in the
jition of the worker, a servant of Allah (‘abd Allah), who is to be
ded if he performs well and punished if he misbehaves? The laws

Become clear when al-Ghasai's theory ofthe parpones of law is diac

‘Qur'an 79: 27

44 Law as the Hukm of Allah

in this case would appear to be lying side by side with the interest
of Man, as al-Razi maintains, though they are actually serving some
larger purpose. On the other hand, if Man is the sole purpose of the
universe, the laws would be laid down to serve his interest alone.
Thus, there would be a causal relationship between the laws and the
interest of Man. In such a case, would he be called the vicegerent of
Allah (khakifat AUdh)? Some jurists have conceded that it is proper to
assign this title to Man, for the Qur'én mentions it too, while others
consider it as heresy and maintain that the reference in the Qur'in
is to some previous creation to which Man is a successor (khalifah).®
‘The latter jurists prefer to use the title “vicegerent of the Messenger”
or khalifat al-Rasdl. The answers to these questions are known to
Alléh alone. That is where the jurists leave the discussion, and we
should do the same.
In any case, the approach we take on this issue does not alter the
pecmearetie rs cise em There is
It does not matter if
‘ncaa relationship. The majority of the jurists, therefore,

derivation of new laws: This in no case means that the Muslims are
free to make laws in accordance with whatever they deem to be their
interest. The interest of Man is determined by the Lawgiver Himself,
and there is a determined methodology for this. The jurists have
taken great pains to lay down this methodology in a way that the
laws derived through it may still be termed as the ahkdm of Allith,
would not be an exaggeration to say that the key to the future
levelopment of Islamic law is through the doctrine of maslahah,” as
‘ill be shown later in this book.

4.3. Shari‘ah and natural law

There have
been Aoviedisinia maces Metin jurists over this issue, though the
terminology used by them was different.

‘See eg., Qamaruddin Khan, The Political Thought of Son Taymiyah (Islam-
abad, 1973) TS for a discussion of Ibn Taymiyah’s views on the subject.

"The intention behind the wse of the word “doctrine” is to distingui
the narsower peociln of meylsbah This wll become sbrioes lales Whee we de.
‘cuss al-Ghasill's theory of the parposes of Islamic law.

Teeortes or Istauic Law 45

Natural law has a very long history beginning with Cicero and
continuing right up to our times. The classical theory of natural lay
Hart puts it, is that “there are certain principles of human conduc
discovery by human reason, with which man-made law mus
if it is to be valid.”" It should be made clear that natural
law has not always been associated with God, and even when it has
been, its basic assumptions have not been dependent upon a belief in
jod, Our discussion, however, pertains to a much restricted version
natural law in which belief in Allah as the Lawgiver and Master of
@ Universe is essential. To describe what we mean by natural law
in this context, let us borrow a definition provided by
He says:

Of the Divine laws, or the laws of God, some are revealed or
promulgated, and others ate unrevesled. Such of the laws of
God as are unrevealed are not unfrequently denoted by follow-
ing names ot phrases: ‘the law of nature,’ ‘natural Iaw;’ ‘the
Jaw manifested to man by the light of nature or reason;’..

- Paley and other divines have proved beyond a doubt, that
it was not the purpose of Revelation to disclose the whole of
these duties. Some we could not know, without the help of
Revelation; and these the revealed law has stated distinctly
and precisely. The rest we may know, if we will, by the light
of nature or reason; and these the revealed law supposes or

assumes. Tt passes them over in silence, or with a brief and
incidental notice.**

Austin also says that these unrevealed laws are the only laws
which God makes for that portion of mankind who are excluded

the light of revelation.!? We may qualify Austin’s preice|

by saying that these are

that is, before the
val of the light of revelation amidst a particular community. Once

revelation has come, such laws may only be discovered in the light of
revelation, because revelation does not pass them over in silence; it

SHELA. Hart, The Concept of Law (Oxford, 1961), 182.
John Austin, Lectures on Jurisprudence (London, 1911) i, 104. (Emphasis in
the crignal).
‘Tid

46 Law es the Hukm of Allah

indicates them through general principles. We are now ready to look
briefly at some of the discussions of Muslim jurists.

There was complete agreement among Muslim jurists about the
meaning of the words of the God, “he Aukm belongs to Allah
alone.”"? The Mu‘tazilah agreed with the majority that the source of
all laws is Allah, but they disagreed with them about the identifica-
tion and discovery of these laws prior to revelation, They maintained
that reason can discover the laws of Allah, that is, the shart ahkam,
in the absence of revelation. The Mu'tazilah were not alone in holding
these views and there were other sects who held the same or similar
views, especially the Mituridis, some of whom were Hanafis, though
their views were slightly different. The Ash‘arites held the view that
the laws of Allah can be discovered through revelation alone and
there is no way in which reason can discover these laws. The basis of
this disagreement is the debate over husn and qubh or good and evil
or right and wrong.

The basic question was whether an act recognized by reason as
good or right in itself became binding on the subject? Was he to
act upon it even in the absence of revelation or prior to it? The
Ash‘arites, who presumably became the majority of the Sunnis,

‘ maintained that even if reason could identify such an act there was

no obligation to obey it or act according to it, the sole criterion for
right and wrong being revelation. An extreme view of the Mu‘tagilah
appears to be that the laws of Allah must conform with reason; in
fact, some of them appear to have gone so far as to sey that it ix
binding upon Alléh to lay down laws that conform with reason. This
was objected to by many as it amounted to restricting the attributes
of Allah.!4

‘The essential point in all this is whether reason can be used as a
source of law for those things on which the sharv‘ah js silent? In other
words, if something is not expressly prohibited ar commanded by the
Qur'an and the Sunnah, can the law for auch a thing be discovered
through reason? The answer of the majority appears to be a clear
“No!” This, however, does not mean that reason has no part to play
in the discovery of laws in Islam. The requirement is that all reason
and reasoning must proceed from the principles of the Qur’én and
the Sunnah. The process is the same in many other legal systems,15

DQuran 6: 57
See Sadr al-Shart'ah, Towdih, |, 345-47.
"In the United States, for example, during the confirmation hearings of Judge

Tueories oF Istamic Law 47

we can rely as soon as we discover that a rule of law is not directly
discoverable from the texts. Such a rule, they insist, needs to be
discovered directly or indirectly from the principles of Islamic law,

and not from some “ominous brooding in the sky." To explore the
matter further, we may turn to the discussion of situations in which
the shart'ah is apparently silent.

A principle of Islamic law is that the Lawgiver has left out nothing
for which a hukm has not been laid down. The basis of this principle
is considered to be the verse, “We have neglected nothing in t

Book (of Our decrees)."#¥ If nothing has been left out, there is no
scope for the exercise of independent reason for the discovery of laws,
as discussed in the previous section, that is, for relying on some
unknown body of laws supposedly “looming out there.” Nevertheless,
we find that there are many things in this modern world, at least, for
which an explicit hukm cannot be found in the Qur’n or the Sunnah
and it is difficult to derive a hukm for it on the basis of strict analogy,

Does the principlethat nothing has been left out—mean that even

when the hukm has not been expressly stated it still exists implicitly,
and we have to discover it in the sources? How do we go about the

business of doing this and what methodology do we use?
One way of approaching the problem is to say that whatever is
and which cannot be dealt

elas Thomas es webia entd o06So unto wath 0 od should ity
natural law to restrict the right of « woman to neck abortion. The argument of

[rights granted onder the taw must not by importing
ights from natural law. Thus, in this case, they said, thot waka bow tah wo
for the fetus should not be able to restrict the reproductive rights of a woman
1A phrase used by Oliver Wendell Holmes for natural law,
'¥Qur'am 6 : 38. ALSBAA'T was the first jarist to emphasize this point, however,
he quotes other verses to support this statement. He says: “There ix 90 incident
that befalls one of those who follow the din of Allth without there being an
‘evidence in the Book of Allah providing guidance for it.” Among the verses he
nasi vee 9 of Dah ooh: “Ad YW have et doa so the the Bock
explaining all things, « Guide, a Mercy, and glad tidings to Muslims.” See ab
‘SAA, al-Rizaigh (Cairo, 1309/1891) 20.

48 Law as the Hukm of Allah

with through

is that of permissibility (ibahah), unless a legal
‘idence prohibits it.* This would imply that anything that is not
pressly mentioned in the texts need not be assigned a hukm and
should be left to function under the original rule of permissibility.
In other words, anything that has not been specifically prohibited
by Allah is permissible. This principle forms the foundation for the
‘Shafitite principle of istishab. Such an understanding would be one
way of explaining the actions of governments that are concerned only
with “Islamizing” the laws contained in the books of the jurists, for
almost all the ahkdm there can either be found in the texts or can be
linked to the evidences through analogy. Perhaps, these governments
wish to leave the rest of the laws untouched, One also finds many
learned scholars asserting this rule in support of the permissibility
of many modern activities for which a hukm may be needed. Some
of them insist on this rule without even considering it as a whole,
while others, it appears, ignore its overall implications. There are
difficulties involved in this approach.

Purther, it is
‘this principle, whether an
the texts Icncnas ectcanuaansrctecolunbacestuaenanaies
tly,
to justify the permissibility of the act. If we have to justify this
- permissibility, the benefits of the principle appear to fade away.
‘There is another aspect of the problem. This becomes obvious
when the implicati Wall
things are permissible, unless expressly prohibited by the shari‘ah,
such lah

=e Tor
the sake of argument, let us consider the case of smuggling carried
‘on between two neighboring Muslim countries. Is it not trade that
has been permitted by Allah, not only implicitly, but explicitly in the
Qur'an? Will not the prohibition of such trade amount to the restric-
tion of a fundamental right granted by Allah? Is it evasion of tariff?
the imposition of tariff valid among Muslims? This is a hypothetical
example and the purpose is merely to show that on the basis of this

SEL LoS, OUTLET BS

‘Turorwes oF Istamic Law 49

rinciple any prohibition, whatever its nature, can be challenged as
oon s diner er easel Goaees Meee
|, without a di ii evi he

Se aagematy declares things permissible, it rarely, if ever,

that is, plugging the
wut is this a valid principle? Is the objective legal? Further, even
this may not work in certain cases. Let us now consider
approach for situations where the shari'ah is silent

‘Al-SuyGtt (d. 911) is of the view that the principle of permissibil-
ity discussed above is professed by the Shafi'ites, The Hanafites, he
says, uphold the opposite principle: “The original rule for each thing

9 ALSuyati borrows

this statement from the Imam al-Haramayn, al-Juwayni. One does
find some of the Hanafites invoking the principle of permissibility at
general approach of the Hanafis seems to confirm

times, but the
the principle of prohibition as a basic methodology. This could be
one |

for declaring permissible things that appear to be per-
missible on the face of it, like hire (ijérah) for example, for which
evidences can be found in the texts.

is likely to ensure that a hukr will be found for each activity in an
Islamic state, Such permission or permissibility will proceed from the
| principles of Islamic law. This is what all the jurists appear to have

ice
as found in re ccd ya eee
Sere rernaieas
p) guarantees comp! on and absorption of all laws
in a more reliable manner, and makes the phrase “Islam is a complete

‘AL-Suylt made this statement is hie book ol-Ashbah wa al-Noaa ir. This wan
reproduced by Ibn Nujaym in his book with the same title. Tha Nujaym (4. 970),

‘Ashbah wa al-Nazi er (Bayrut, 1980) 66.

Tha Nujaym, al-Ashbah we al- Naga ir 66. Babs al-“Ulim, commenting on the
‘words of Mubibb Ash al-Bihari, says that the principle of sbahah is upheld by the
Hanafls alongwith the Shafts, bot be acknowledges that there are many things
besides sexual activity that arc prohibited. Thus, marder and assault, as well as
sexual activity, are also probibited. Bahr al-’Ulom asserts that mankind has never
‘been without guidance from Allab, right from the days of Adam, therefore, mont
of the things prohibited are known, See "Abd ab’AUi iba Nizém al-Din al-Ansiri,
Fawatih al- Raharoat, i, 49-80

50 Law as the Hukm of Allah

code of life” more meaningful. This, however, is merely am opinion
and others may disagree. Further, this principle may have its own
problems.

It obvious that eighty per cent or more of the activities of a
modern state are not covered by the books of Muslim jurists, and
would need an effective methodology for the derivation of the nec-
essary ahkam. This methodology has been developed by the fugaha”
and will be described in the third part of the book.

4.5. The limits of Islamic law

Islam, it is generally acknowledged, is a “complete code of life" and
‘at the core of this code is the law of Islam. This implies that a
Muslim through his submission to Islam not only accepts the unity
of God, the truth of the mission of Muhammad, but also agrees
through a contract (bay‘oh) with the Muslim community that his
life be regulated in accordance-with the ahkdm** of Allah, and in
accordance with these ahkdm alone, No other sovereign ot authority
is acceptable to the Muslim, unless it guarantees the application
of these laws in their entirety.-Any other legal system, howsoever
attractive it may appear on the surface, is alien for Muslims and is
not likely to succeed in the solution of their problems; it would be
doomed from the start.
A comprehensive application of these laws, which flow directly or
\directly from the decrees (ahkim) of Allah, would mean that they
wuld regulate every area of life, from polities to private transac-
ions, from criminal justice to the laws of traffic, from ritual to inter-
ational law, an from the laws of taxation and finance to embezale-
vent and white collar crimes. The books” of the fugaha’ (Muslim

jurists) r, ‘

*\ Abkaen is the plural of hukm. The term hukm has been translated into English
in diflereat ways: injunction, command, prescription, and sharrah-value, None of
these terms conveys completely the comprehensive meaning of the term, as will
be obvious in the discussions to follow. It is preferable to retain wuch terms in
‘heir transliterated forme.

* These are manuals of substantive law, as distinguished from the books on
ugdl ol. figh Similar books, patterned on the Muslim manuals of law, have been
called “codes” by the Jewish scholars. See, bg, the code by Maimonides, and
the later Shulln Araith. The term “code” is being avoided here, as it denotes
a document enforced by the state. The Muslim maswals, or the Jewish for that
matter, were never enforced by the state.

Tweories of Istauic Law 51

" of
ws

do so. Yet, all
some of the Muslim count:

} Perhaps, it has been assumed that

ization will have been undertaken if the laws described in the
figh books are enforced, leaving the rest of the area in the control
of the secular authority, to be shaped and reformed as thought fit.
‘This is not likely to have much effect on Muslim society as a whole.
Tt would amount to no more than an addition to the personal law
the Muslims, which is already applicable in the Muslim countries, =
well as in some secular countries like India. What, after all, woul
be the difference between a Muslim country that enforces only the
personal law of Muslims and between India, a secular country that
does the same? The only difference would be that the percentage of
Muzalims living in that country would be greater than the percentage
in India.

Despite the application of the personal law and the additions
made to it in recent times in some countries, the demand for Is-
lamization arises again and again. It is obvious that the Muslims
want the entire law to be Islamized so that they can feel its impact
on their lives; small additions to their personal law are not likely to
satisfy them. In addition to this, emphasis on Muslim personal law
alone is likely to relegate the vital forces of Islam to the background,
as is the case with other great religions, reducing It to the status of a
“personal affair.” This, in our view, is contrary to the spirit of Islam.

There would be very few Muslims who would agree to confine Is-
Iamic law to personal matters of inheritance, marriage, and divorce,
or to a few penalties that are actually laid down as deterrents by
the Lawgiver, and are meant to be applied rarely. They would deem
it imperative that Islamic law deal with matters covered by the law
of torts, the law of contracts, taxation, and above all constitutional
law and fundamental rights. They would like to see Islamic law tak-
ing into its fold the laws of business organization and commerce. Of
particular interest to them would be the seeking of justice under ad-
ministrative law, labor law, and the laws governing the granting of
government contracts, which in most places are a source of exploita-
tion and corruption. Most former British colonies would especially
like to see the criminal procedure codes to be altered in the light of
Islam. Many such laws are the heritage of a colonial past, laws de-
signed to enslave nations, laws that are being retained by the present

82 Law as the Hukm of Allah

lors against the interests of an aware, yet often helpless public.
It is true the eta
‘ . This led to the development,

tl

he rulers, of many institutions and laws with which the fugahd’ had
. Many Orientalists have, therefore, concluded that
here was a separation between theory and practice in the Islamic
system; what the fugahd’ laid down in their books stayed in the
books, while the rulers and sultans did as they pleased. The question
is why did the fugaha’ ignore many areas that seem so important to us
today and must have appeared important to them too? In fact, they
‘even mentioned these institutions sometimes without even a hint as
to their legality. It cannot be said that they were busy developing the
Jaw contained in their books and did not have time for such matters,
while the rulers exploited the opportunity to elude the dictates of
the shari‘ah, The fugahé” had fourteen centuries in which at least
some of them could have taken up the burden. It has already been
suggested that the fugaha’ left these matters to the rulers by design.
‘There is a method in their avoidance of some issues. In other words,
the fugahd? dealt with a part of the law, which they considered their
duty to develop, leaving the rest to the rulers in each age.”* This is
an important issue that attempts to penetrate the nature of Islamic
Jaw, It will be explained further in the chapters to follow.

4.6, Law as a growing tree

Islamic law is like an ever-growing tree. The seed of this tree was
sown in the hearts and minds of men, fourteen hundred years ago,
by Muhammad, the Messenger of Allah, Since then it has taken root,
grown, and spread its branches on all sides. With each passing cen-
tury, the tree grows in size. Its evolution and growth never stop, Its
spreading branches cast their shade on all sides covering different
cultures, peoples, and races.

Like the trunk of this tree, Islamic law has a part that is fixed,
and like.its branches and leaves, the law has a part that changes in
shape and color in every season. The fixed part of this tree is closer
to the roots and cutting this part is likely to damage the tree itself.
Like the trunk of this tree, the fixed part of Islamic law has grown
directly from its roots or sources. Changing this fixed part will affect
the nature of the legal system. Like the branches of the tree, the

The rulers are to base their methodology on the principle of perminsibility or
that of probibition, as discussed earlier

Tusonies ov Istamic Law 53

flexible part of the law has been changing with the times, sometimes
yielding abundant fruit, sometimes less.

‘When the branches of this tzee are cut off, its cool shade is miss-
ing, but its strong trunk continues to guide and protect those who
cling to it in storms and times of e1 Thus, when the state does
not let the branches of Islamic law provide their shade, it is the fixed
part that continues to keep the Muslims on the right track. For those
‘Muslims living in secular states, the fixed part of the tree is the only
guide, and this is all they are obliged to follow, except for certain
parts that are beyond their power to implement.

‘Tending the trunk of the tree, the fixed part, has always been
the task of Muslim jurists (the fugahd’). They have looked after it
with loving care for fourteen centuries. Their labor has made the
trunk so strong that ceaseless attacks against it have failed to budge
it, Not only this, many attacks on its roots have also failed. When
the tree was young, its stem was tended jointly by the state and
the jurists, as then there was no distinction between the fixed and
the flexible part. It was later, when the tree reached a mature stage
of development, that the fixed part could be distinguished from the
changing part with ease. At this stage the jurists left the care of
the flexible part in the hands of the imam or the state, while they
devoted themselves to the strengthening and refinement of the fixed

rt of the law. The only condition that the jurists imposed uy
imam for developing the flexible part of the law was that

‘The rulers in some ages did care for the branches of this tree,
while in others they did not. On occasions, some rulers cut off the
branches that had grown in earlier ages and started all ove} again,
‘This discouraged the development of firm offshoots from the tree,
that is, the development of legal institutions and practices that could
be developed further in later ages. After some centuries, when the
Muslim empire split up, the branches of the tree were divided into
different segments on different sides, with each ruler looking after the
branches on his own side of the tree, as it suited his wisdom. Some
took interest in this law while others did not. Thus, for example,
the Ottoman rulers tended these branches in their own way in the
Ottoman empire, while Awrangzeb ‘Alamgir developed the law in his
‘own fashion in India.

‘The period of these rulers was followed by violent storms around

4 Law as the Hukm of Allah

this tree, and alien winds struck it destroying the branches on all
tides, On some sides the Muslims pulled down the branches them-
selves. The age of colonization left nothing, but the solid trunk of the
tree, which could not be uprooted with ease, thanks to centuries of
dedicated work by Muslim jurists. When the storms were over and
the Muslims were left alone to take care of the tree, all they could see
was the trunk of the tree with no branches or leaves. In their confu-
sion they started blaming the jurists for not having looked after the
branches, and having fallen prey to taglid. They failed to distinguish
between the fixed part and the flexible part. They did not realize
‘that it was some of the rulers and not the jurists who were to blame
for not having established lasting institutions. Some even tried to
bring branches from other alien trees to hang on their own tree, least
realizing that these would rot one day. Today, some Muslim states
are trying to look after the tree in their own way and on their own
side, while others are busy trying to cut down the tree and even dig
at its very roots, Nevertheless, branches have begun to sprout and it
will not be too long before they start to bear fruit. Indeed, they must
bear fruit, because the culture, history, life, and the very identity of
Muslims are associated with this tree.

‘A question may be asked here as to what we mean by the “fixed”

‘Tweories oF Istamic Law 55

part of the law, Very simply, the law that is stated explicitly in
the texts, the Qur’dn and Sunnah, or is derived through strict anal-
ogy (giyds), is more or less fixed. The rules relating to ‘ibadat are \
fixed; the rules relating to inheritance are fixed; the rules relating to |
marriage and divorce are fixed; and the rules relating to the hudiid ;
penalties are fixed. These laws are not likely to change over time. In
comparison, if we make laws about incomie-tax, traffic, new forms of
crimes, and other areas in accordance with the sharieh, we might
change them through fresh ijtihdd in a later age, because these rules
are not stated explicitly in the texts.

Islamic law has no parallel in history. It is the only legal system
that has accommodated a large variety of races, peoples, and cultures
for such a long time. Some of its features, however, may be compared
to those of the English common law. Like the commontaw,Islamic
law hi
for

fe the sys-
While the principles of common law may be found in aorta

u
dedllons, the principles of Ilamic law are laid dowa in the Gur"
and the Sunnah of the Prophet. The principles of common law may
change and be modified over time, but all the principles of Islamic
Jaw are not subject to change. Some ase fixed, while others derived
by the jurists may be modified in the light of the fixed principles.
One strength of the common law is that it lends iteelf to adaption,
It is today applied in somewhat different forms in England, United
States, Australia, Canada, and even in former colonies with widely
differing cultures like India and Pakistan. This has been the strength
of Islamic law from the start, and is reflected in its schools with their
ore or Jess con-

Another feature of the common law is that it is a precedent-based
legal system, as compared to the civil law practiced in Europe. Is-

fiance on precedent. In short, the and longevity
exhibited by Islamic law are not exhibited by any other legal
‘The reason is that Islamic law has a built-in and is

ture of adaptability, a feature that is vital for the survival of every

_ living organism.

Chapter 5

Law and its
Classification: The Hukm

‘The structure of Islamic law, its classification, and the consequential
obligations and duties, revolve around set’ of rights. Most writ-
ers on Islamic law focus their attention on the five-fold classification
Islamic laws, This is the well known division into wajib (obliga~
), mandub (recommended), mubéh (permissible), makrih (disap~
roved), and hardm (prohibited), The classification is important in
itself, but it must be realized that it is not a classification of laws;
it is a clagsification of obligations resulting from the operation of /
thalare. i tie oe apter we will try to adopt a different approach
‘his pie can
poherapemoneepmaproarriatzy at least, two Hanafi jurists:
-al-Sarakhal (d. 496) and Sadr al-Shari'ah. The reason why we will be
using materials from Hanafi works is that not only is

|, but the Hanafi school has had t!
ogee ee
Hart, that Islamic laws are first divided into primary and secondary

rules. Tt may come as a surprise to some if we say that tI

SELLA. Hast, The Concept of Low, 77-96

58 Law and its Classification

than one thousand years ago.? The only difference is that the rules
of Islamic law, being based on religious law, present a picture that
is much more complex. The category of primary rules is designated

by the Muslim jurists as the hukm taklifi, or
. The category

of ecndorngen® as the hukm wad'i or a category of
rules ¢!

» the

All this will be ex-
plained shortly. ‘There are other secondary rules that determine how
the laws are implemented, renewed and validated, but we cannot go
into too many details in a rudimentary discussion such as this, A full
explanation requires an exhaustive study devoted to these divisions.
ie it to say, that some of these rules considered secondary by

cit

lart are considered as primary by Muslim jurists, because Islamic
ww is a religious law. The role and function of such secondary rules,
however, is recognized by Muslim jurists in the same way.
Each primary rule or hukm taklifi is based on a right. There are
‘three kinds of basic rights in Islamic law: the right of Allah, the
right of the individual, and the rights of the individuals collectively
or the right of the state. The third category of rights is mentioned
very seldom by jurists, because it relates to the area of law with
which they did not deal directly. This is the area left to the imam,
Recalling our example of the tree, we may say that this right pertains
to the flexible part of the law, the area of the branches of the tree.
‘This kind of right is sometimes designated as the right of the ruler
‘hagq al-sultén)? or as the right of the state (hagg al-saltanah).* Some
modern writers have unfortunately lumped up some of these rights
together, and thereby created difficulties in the comprehension of the
structure of the law, I would like to emphasize here that Tum nlawT
OF ALLAN IS DISTINCT AND INDEPENDENT OF THE RIGHT oF THR STATE. This
is of crucial significance in understanding the structure of Islamic
law. On the other hand, when we use the term hugug al-"ibad in the
plural we may mean the tights of individuals generally, , oF we may
mean the that is, the rights of

the community as a whole. In this latter sense, that Is, the rights

*Those who wish to understand this system in greater detail must consult
Hart's outstanding work, The Concept of Law.

*See tba Rushd, Bidayat al- Muytahid, i, 303,

‘See al-Mawardt, ol-Ahkim al-Sulténtyah, 237-38.

Tueories oF Istamic Law 59

of the community, the implication should be the same as the rights
of the state or saltanah. Again, the rights of the state should not
be merged with the rights of Allah. Once this has been unders

In these cases, it is either the
is predominant or it is the right of the individual that is in the
forefront, This gives rise, in all, to the following kinds of rights:

“L. The right of Allah (hagg Allah)
(2. The right of the individual (hagg al-‘abd)

‘3. The right of Allah lying side by side with the right of the in-
dividual — with ite two cases of predominance of one or the
other.

4. The collective rights of the individuals or of the community,
also referred to as hagg al-saltenah or hagg al-sultan.

‘The classification of rights is of great significance in understand-
ing the structure and operation of Islamic law. There are many prac-
tical consequences attached to these rights. The discussion of how
these rights affect the overall structure of the legal system is post-
poned till a later chapter. For the present we need to focus on the
classification of primary and secondary rules, and also on the obliga-
tions arising from the primary rules. Let us, therefore, look at how
the Hanafis classify laws.

5.1. Classification of primary rules

just be pointed out again that the jurists deal with the fixed part
the law, therefore, they do not mention the classification of the
within the category of the right of the state, For the jurists it
falls within the category of the right of the individuals collectively, In
actual fact, it is left to the imam, who is theoretically a full mujtahid,
to decide how the rights of the state are to be classified. This may
vary in different ages. The classification that follows deals with the
fixed part of the law.

‘The ‘ .
jurist ‘Does this mean that the other sary ee

“Shams al-A’immah Aba Bakr Muhammad iba Abi Sahl Ahmad Al-Sarakhet

60 Law and its Classification

‘80, or were not concious of such a classification? Indeed, they were,
and they presented such a classfication, but in a manner that modern
writers, especially those who belong to disciplines other than law, fail
to notice, or fail to put in its proper perspective. The majority of the
juriste classified laws under the heading of mahkum fih or the act to
which the hukm is related. Under the heading of the hukm shart,
they give an account of the obligations arising from the operation of
the act in relation to the hukm. Al-Sarakshsi combined the two, It is
in this combined form that we approach the subject here.

of
"Fights, These are further subdivided as follows:

7 1 Rates that relate to to the right of All aloue, These are of

* Pure Worship. The first of these is belief in Allah or tan,
‘The second is prayer. The third is zokdh. The fourth is
fasting (sawm). The fifth is hajj. The sixth is jihéd. There
are other acts of worship associated with the above like
‘umrd and i‘tikdf (seclusion in a mosque).

* Pure punishments. These are the hudid penalties that
have been instituted as deterrents, as a pure right of Allah.

© Imperfect punishments. The example of this type is pre-
vention from inheritance in case of murder, that is, the
murderer cannot inherit from the victim.

© Those vacillating between a worship and a penalty, These
are the kaffardt, that is, expiation made for different rea-
sons.

‘© Worship in which there is an element of a financial lia-
bility. The example for this is sadagat al-fifr, which is 3
payment made before the ‘/d following Ramadan.

(490/1097), Kitab al Upal (title page UyGl al-Serakhel) Ed. Abe abWaft’ al-
po ave freed tae te bv chmlarati grt 2. I have given &
different Gtation form abSarakhst by using his full name. In opinion,

SutGi wes scnal Gages isiasokantioas Neledin oe cet niar
of his

‘that cam match the power of this book. His book om ugsil is equally good,

‘Tueoates oF Istamic Law 61

.
‘This is like ‘ushr, the ten percent charge levied on the
produce of land.

¢ Financial liability in which there is an element of a pun-
ishment. The example given by al-Sarakhs! is that of the
hard} tax.

r. These are three: those
Initially as a rale; those that are imposed as an
nt and those that are associated with the
rule. The examples of these are the khums levied

‘on cattle, minerals, and treasure-troves,

"2, ‘Those in which the right of Allah and the right ofthe individual

but the right of AUl&h is predominant, These
like the the hadd of qadhf. Please note that for the Shafl'y
his is a pure right of the individual.
-% Those in which the right of Alldh and the right of the individ:
t It is the right of the individual that

is predominant. For this category the example is qisdg or re-
taliation for bodily injuries or culpable homicide amounting to
murder.

4. The last category is that of the This
categuryinciter amo recying that oot nuded the
gone te reseed The important point to consider
is that jarakshsi does not mention to‘sir or discretionary
penalties. The reason is that the discretionary penalties fall
within the category of the right of the individuals, when these
are considered _coljectively,-that,is, they are the right of the
state, The: states that-all ta‘zir
relates to the right Of the individual. The Shafiri jurist al-
Mawardi has ‘caused some confusion by stating that some ta‘zir
penalties fall under the right of Allah.” Al-Mawardi's statement

ii, 65. He makes this statement while explain-
ing how ta'sir is proved.

Bs specmems erp angry 5 ap This is not to say that his state.
ment is incorrect. In fact, jn the ShAR'T school to which be belongs, even the hadd
rof gadhfis a right of the individudal, He includes other penalties within the hudad,
like the refusal to pay debts, and considers them the right of the individual. Ibid
223,

62 Law and its Classification

leads to analytical inconsistencies, as will be discussed in a later
chapter. Some later Hanafi jurists have also given confusing
opinions on the issue. For our purposes, we adopt the more
reliable Hanafi view.

‘The above classification is generally adopted by all the Hanafi
jurists and is discussed in detail by Sadr al-Shari‘ah.* Al-Sarakhsi
has given detailed reasons for the inclusion of each example under
‘a particular heading and is beneficial for those interested in further
analysis,

‘This classification pertains to primary rules and shows how each
type of law is linked with a right, which is either a right of Allah, or
the right of the individual, or the right of both. We may now turn to
the classification of the obligations arising from the primary rules,

5.1.1. Obligations arising from primary rules”

has been on
u . Some have
This is quite

natural, because the idea is tied to the definition provided by the
jurists for the hukm shar't or Islamic law. It is also tied in with the
jerivation of a rule of law from the text, because the first thing that
cerns the jurist is whether a command in the texts implies an
bligation, a recommendation, or something else. To understand this
we will examine the definition of the hukm shar‘f provided by jurists
in some detail, because this is usually given prominence, not only in
the books of modern scholars, but also in the books of earlier jurists.
} John Austin’s theory of law, which states that laws are com-

mands of the sovereign backed by threats of punishment, was first
criticized by Kelsen and more recently by Hart. Hart maintains that
the Austinian theory fails to explain different kinds of laws that are
not commands.” Such laws are called the “secondary rules” of a legal
system by Hart, while those that create obligations are termed as
“primary rules.” Rules that facilitate the conclusion of contracts, for
xample, cannot be considered as commands creating obligations, nor
= those rules that enable the officials to change, create, or enforce

Jaws within the legal system. These are power conferring rules. The

“Sadr al-Shart'h, of Tosedth, i, section on the hukm shart
*HLL.A. Hart, The Concept of Law, 84-88,

‘Tueories oF Istamic Law 63

Austinian theory fails to explain such rules. Hart himself presents
a model of a legal system in which commands play no role, and it
is ‘rule of recognition’ tion” that Er

Earlier Hans Kelsen had prevented the
idea of a basic rule or norm (grundnorm) as unifying, and laying, the
foundations of a legal system.!"

Hart also shows that a modern legal system, as distinguished
pin anny Hino bt ay Ad
secondary rules and their union is perhaps bis
bution to the analysis of modern legal systems.

more than one thousand years’ ago. Although dealing with a legal
system based on religious law (which Austin ealled law proper) they

described in detail how the Islamic legal
5
ondary rules. In addition to this, Muslim jurists not only postulate
details of a rule of recognition

a basic norm, but also give the that
flows directly out of this grundnorm and
fu . The definition they re

inction as that described by Hart.
Islamic law avoids the criticisms Hart levelled against Austin’s def-
inition. This definition not only describes laws that are commands,
but also takes into account those secondary rules that facilitate the
operation of the primary rules.

A definition of Islamic law

The Arabic word hukm (pl. ahkam) means a “rule.” This may be a
rule of any kind. Thus, it may be a rational rule, like 2 + 2 = 4;or
the rule that the whole is greater than its parts. It may be a rule
perceived by the senses, like fire burns. Again, it may also be based
upon experience or experiment, like aspirin is good for headache (and
bad for the kidneys). When we wish to consider a rule of Islamic law,
we qualify it with the term shart (legal), or a rule belonging to
the Islamic shari‘ah or law. It is the hukm shar that is defined by

“Ibid. 92-93, 96-120.
“Hans Kelsen, General Theory of Low and Stote (Wedberg tr, 1945); Pure
Theory of Law (Knight tz, 1967).

64 Low and its Classification

1s, when they attempt to answer the question: What is
coe gL Lawl cya Jul, Ghat fle DI ths

eee

The first point to notice about this definition is that hukm or a
ral of law (tobe referred to as balm from now on) le 8 comsmn-
nication from Allah. This means that it is
is Coarse Scat avenn
be he a ruler or someone else, Needless

communication is related to the acts of the subjects.
‘his relationship enables the jurist to understand whether the re-
juirement is for the commission of the act or its omission, or whether
choice has been granted for the commission or omission of this act,
thus, the words of Allah, “Do not go near unlawful sexual intercourse
(zind),"" contain a hukm that requires omission.
Third, the hukm may be expressed through a demand. The de-
mand in this case may be for the commission of an act or its omis-
sion. In each case the demand may be expressed in binding terms
or otherwise, i and
Fequires the commission of an act, the h

The definition has so far given four categories of obligations aris
ing from primary rules with obligation at one end and prohibition
at the other, with the two categories of recommendation and dis-
approval in between. These categories are associated with primary
rules that create obligations, that is, obligations for the commission

Qur'ka 17 < 32,

Tweoates oF IsLamic Law 65

or omission of an act. These obligations are mostly associated with
sanctions.

Fourth, the t for

the commission oF omission of an act. In other words, the subject
E The bulk of the Islamic

free to perform the act at his discretion.
ws 1 these categories and include all kinds of see

. What Hart terms as “power-conferring rules” mi
all under this category. This ls the area that Austin's defsition fails
to explain, in Hart's view. The category ia known as permissible
-mubéh. It is not to be concluded from this that the subject is f
10 do anything he likes under the protection of this category. All

se in this category too are validated by the “rule of recognition” of

ic law, and we have already seen this in the previous chapter,
while discussing the issue of laws in cases where the shart“ah is silent,

yy, the definition states that the communication may be ex-
. This is the area of*pure secondary
In this case, the communication declares or determines the re-
tionship of an act or set of facts with the act of the subject or ite

ted hukm. The

hee Per example, in the hukm of the payment of zakdt (obliga-
tory religious contribution), the possession of a minimum amount of
wealth (nigdb) is the cause for the application of the hukm, having
retained this wealth for a year (haw!) is a condition for the hukm, and
the existence of debts against the subject may be the impediment or
obstacle in the way of fixing liability for 2akdt. We shall take up this
topic in some detail while discussing the union of the primary and
secondary rules,

From these types Muslim jurists form two main categories for the
hukm. The first is called the hukm taklifi or the obligation-creating
Po ‘This is the category of primary rules. None of these are desig-

‘as commands, though some do carry the force of commands.
second category is called the /

hukm, These are the
like those of adjudication

66 Law and its Classification

We may now list the categories discussed so far and point out a
few more categories of secondary rules to complete the discussion.
‘The hukm taklift

‘The emerging
or rules that create obligations, are five:

. Obligatory (wdyib)
2, Recommended (mandub)
3. Reprehensible (makrih)
4, Prohibited (hardm)
5. Permissible (mubdh)

These five categories emerge from the operation of laws in the
opinion of the majority of the schools of Islamic law. The Hanafis
derive seven categories from the same definition:

1. Far: Obligatory. This obligation arises from an evidence or
source that is definitive with respect to its implication.

2. Wajib: Obligatory. This obligation is slightly weaker than the
first. It arises from a source that is probable with respect to its

implication and authenticity.

3. Mandtib: Recommended. The difference between recommenda-
tion and the two kinds of obligation above, it should be recalled,
is based on the binding or absolute nature of the command.

4. Makrih kardhat al-tahrim: Abomination. This category arises
from a definitive evidence not expressed in binding terms. It is
dlose to prohibition.

5. Makrih kardhat al-tanzih: Disapproval. It arises from a proba
‘ble evidence,

2

Harém: Probibited.
Mubdk: Permissible.

~

Tueorigs oF Istamic Law 67

Some writers try to ignore this division by saying that the addi-
Se ee er
js seems questionable, for there are some practical consequences

. We may, if we like
rovide other definitions for Islamic law from different
_ TIT cameos of he ondary rer ho fw fom hi
, but let us try and look at them independently.

5.2, The hukm wad'‘f or secondary rules.

ie definition provided above stated that the communication from
ah may be related to the acts of the subjects in a manner that is
declaratory. This is stated in order to accommodate rules that cannot

be classified under the primary rules. There is also a.
and

what jis not. We will include
the secondary rules. The categories derived are:

1, Sabab: It is the cause on the basis of which a primary rule or
hukm taklift is invoked or is established.!*

The literal meaning In its technical meaning
sis tba Lunges eaentet soo he eee of alge do sacs

‘abGhazal, ob-Mustog/s, i, 93-94. Thus, it is each entity or inch:
dent whove existence the Lawgiver has determined to be the prerequisite for the
‘exintence of the hukm, and ite absence am indication of the absence of the hukm.
‘Unlawful sexual intercourse is a cause for the obligation of implementing hod,
while insanity in the cause for interdiction, bat when Ubese causes are miming
‘there is no obligation to impose hadd «+ interdiction.

‘The cause sabab is divided with respect to the act of the subject into two types
The frst is not dependent on the act of the subject, nor is it within his power to
bring it about. Yet, when such a cause is found the hukm exists, like the setting of
the sun as « cause for the obligation of the evening prayer, and the beginning of
the month of Ramadin as a canse for the obligation of fasting, and like insanity
for the obligation of interdiction. The second type is an act of the subject and in
‘within hia power to bring about, like journey for the permissibility of not {asting,
or premeditated marder for the obligation of gisd¢, or the formation of contracts
a s cause for enforcing their performance. Such an act may itself be the aubject
of a primary rule, that is, it would be required or prohibited or recommended, and
‘it may fall under the category of rules,

i, 188. Thus, marriage becomes obligatory when there is fear of prey (0

68 Law and its Classification

3) Mant: A the

‘There are some more categories of rules that are considered sec-
ondary by the jurists.

Sihhah and butlan
‘An act that is obligatory, recommended, or permissible big
quired to be performed in a certain manner by the Lawgiver.

Unlaveful sexual intercourse, There are other ways of understanding the cause, but
we may avoid them here

‘At important point to understand is about the difference between a sobob that
in & subab alone and a sabob that amounts to a8 ‘lah for a cause. The simplest
way (o wodetsiand this is to say that when a cause can be rationally perceived
{o be reason for the existence for the hukm it is an ‘Wiah, but when the cause is
obscure for human teason and it is not possible to understand why the cause has
been associated with « hukm, the cause is simply a cause and not an ‘illah. For
example, human reason can comprehend why joursey bas been determined to be
the cause for the permissibility of sot fasting, bat it may not understand why the
month of Ramadaa has been fixed for fasting. For further details spe al-Sarakhst,
pal, i, 301

\“The existence of a condition indicates the existence of another thing, but the
absence of a condition does not necessarily indicate the absence of the thing. In its
echnical sense, however, it implies a necemary indication for a hukm. Ablution is
‘4 condition for prayer and the presence of witnesses 4 condition for the marriage
contract. The meaning of shart is understood by distinguishing its meaning from
‘other signs related to a hukm. Ths, a hulk i related to its cause. [tis established
by its ‘Miah. And, it is brought to fulfilment by its shart. The shart is different
from the sabad insofar as the absence of the cause indicates the absence of the
hhukm, but the absence of the shart does not indicate the absence of the huken
The condition differs from the rukn (essential element) also, because the element
is & part of the thing to which it i related, while the condition is an external
factor, Thus, ruka in prayer is part of the prayer, but ablution is « condition
And is not past of the peayer itself For additional details refer to abSarakhat's
book referred to above for the sabab at page 302-303 of volume 2

The obstacle or mani’ is a factor whose existence indicates the absence of «
‘yuken or its sabab, This implies that an obstacle is of two types. The first type
negates the hukm or prevents it from coming into operation, like the negation of
the fukn of retaliation when the accused is the father of the victim, The other
tape's the obetace that affects the cane and prevent it from coming into beng
‘The majority of the obstacles are of this type.

RIES OF ISLAMIC 69

the act is performed properly it is deemed as other
wise it is ). Here too the 7

called |. Such an act can become
if the cause of the irregularity is removed, otherwise it stays
ded. It may, however, have some legal effects.

5.2.1. ‘Azximah and rukhsah

‘The Lawgiver may indicate that one hukm is to be considered as an

obligation imposed initially as a This may be

followed by another rule that is an from the

general rule. The drinking of wine is prohibited as a general rule, In

cases of duress (idtirdr), however, one is jume it, if it
one from dying of thirst.

is
and helps the
jurist achieve analytical consistency, One important significance is
that analogy (giyds) cannot proceed from an exemption, it must be
This provision, considered with other strict

conditions, further narrows down the operation of giyds.

5.3. The purpose of the classification

‘The primary purpose for Mualimn jurists in classifying the hukm shar‘
into obligation-creating or primary rules and into declaratory or sec-
ondary rules was to
». L have stated earlier that Austin defined

Jaw as a command of the sovereign, for which he bas been criticized
by H.L.A. Hart, Hart maintains that Austin’s definition fails to ex.
plain the existence of pawer conferring rules, which are equally a part

law, but they cannot be explained as commands, The definition
i ided by Muslim jurists for the hukm shar is much wider than
in's definition and thereby overcomes such objections,

In addition to this, the classification helps us understand how
the primary and secondary sules, that is, the faklfi and wad’? rules
interact to create obligations and determine the operation of law
‘This aspect of the classification will be explained in what follows,

Chapter 6
The Act and the Subject

“The hukm shar‘, as stated, has four elements, which interact with
each other to give rise to liability and to the obligation to obey the
law. The four elements of the hukm or a rule of law in the Islamic
legal system are; the Lawgiver (Hakim); the hukm or the relevant
law; the act to which the hukm is related (mahkim fih, also referred
to as mahkim bih); and the subject who performs the act (mahkim
‘alayh), that is, the person who is under an obligation to obey the
law,

We have already discussed the topics relevant to the first two
elements. The third element has also been referred to within the
discussion of the classification of laws. In this chapter, we will first
briefly examine the third element and then deal at some length with
the fourth. The interaction of the four elements, or the union of
primary and secondary rules, will be taken up in the next chapter.

6.1. The nature of the act (mahkim fih)

‘The mahkim fih is the act to which the hukm is related. If the com-
munication from Allah is related to this act by way of tablif, that is,

when it creates an obligation, the act is always the act of the subject.

If the communication (Ehifab) is related to an act by way of declara-

‘tion, that is, through a secondary rule, the act may not be the act of —
the subject, but is indirectly related to it. For example, when there
is a command to pay the zakah, the obligation it creates is linked to
‘the act of the subject. On the other band, when there is a command
to fix the minimum nigdb for zakah, there is an obligation to obey a
secondary rule (hukm wad's), which is in the nature of a declaration
supporting the imposition of zakdh.

72 The Act and the Subject

Muslim jurists discuss the mahkwim fth from two aspects: the con-
ditions of taklif and the nature of the act.

6.1.1, The conditions of obligation (taklif)

‘The first condition for the creation of an obligation is that the subject
is no obligation to
perform an unknown or uncertain act. The reason is that the subject
has to conceive the act in his mind and formulate an intention to
perform it. There is a tradition to the effect that the performance
intention, Knowledge of
we subject about the act here implies actual knowledge or at least
tential knowledge, that is, he should either be aware of the nature

or
indirectly. For knowledge about the nature of the act, the existence of
the subject within the Islamic territory (dér al-Jslém) is considered
sufficient. Thus, the rule within the dar al-Js/ém is the same as that
in law: “ignorance of law is no excuse even in a layman,” Islamic
law, however, makes an exception in the cases of shubhah fi al-dalit
(doubt in the case of conflicting evidences). We shall have occasion
to explain this later.

‘The second condition is that the act should be such that it can

be performed by the subject; it should sia ipinreedipnacts Te
purpose of creating an obligation is to command the obedience of the

subject, If the subject is not able to perform the act, the creation
of the obligation becomes futile. This condition is split up into two
sub-conditions: there is no obligation to perform an impossible act;
and the performance of the act should be dependent on the will of
the subject. The former case is obvious. The latter includes the acts
that involve his inner emotions over which he may have little control.
Thus, the tradition that requires the subject not to feel angry is not
in the nature of an absolute command creating a binding obligation,
It is more in the nature of a recommendation or an advice. The same
would apply to a father loving some of his children more than the
others, though he is not permitted to let this love interfere with his
other legal obligations towards his children whom he is supposed to
treat equally.

Ability to perform the act may be relative to the nature of the
act, so what about acts in which hardship is excessive? The answer
depends upon the act itself. For example, hardship involved during
a journey while fasting is more than normal, and here the Lawgiver

Tueortes or Istamic Law 3

has provided relief. In other cases, however, where the act relates toa
communal or collective obligation and has to be undertaken by some,
the act must be performed even with the accompanying hardship, as
in the case of jihad. There are cases where the subject invokes the
hardship himself, because of his eagerness to please the Lawgiver or
for some other reason. Consider the case of the person who used to
stand constantly under the sun while fasting. He was ordered to sit
or stay in the shade to complete his fast. There were several other
incidents like this during the period of the Prophet.

6.1.2. The nature of the act and the right involved

The nature of the act is determined by the kind of right that is asso-
ciated with it. This has already been explained at some length, while
discussing the classification of laws provided by al-Sarakhsi. We may
recall that Islamic law is based on a system of rights. Each primary
rule or the hukm takiiff is based on a right, while the rule falling
under the hukm wad't is related to the primary rule based on such
a right. It is generally believed by writers that there are two kinds
of rights: right of Allah and the right of the individual. Two other "
categories are derived by a combination of these two rights based on
the predominance of one or the other, The right of Allah is equated
by these writers with the right of the community or with matters
that affect the public at large, The position taken in this book is
that while the right of Allih usually relates to matters affecting the
public at large, it is not the same thing as the right of the community
or the right of the ruler or the right of the state, it is distinct from all
these. The attempt to equate the right of Allah with the right of the
state will confuse matters and insert inconsistencies within the law,
An example is to be found in the case of Nizam ws, the Government
of Pakistan,’ which will be discussed later.

‘Thus, there are three kinds of basic rights in Islamic law: the right

‘of Allah, the right of the individual, and the rights of the individuals
collectively or the right of the state. The right of the state Js rarely
mentioned by the fugaha’ because it covers the area of law with which

they did not deal directly, the area left to the imam. The right of the
state pertains to the flexible part of the law explained earlier. This

*PLD 1992 SC 595.

4 The Act and the Subject

kind of right is sometimes designated as the right of the ruler (haqq
al-sultan)? or as the right of the state (hagg al-saltanah).*

‘The distinction between the right of Allah and the right of the
state is of crucial significance for understanding the structure of Is-
lamic law, We will maintain this distinction and will attempt to ex-
plain the effect of not maintaining it wherever possible.

According to this analysis, therefore, there are the following kinds
of rights:

1, The right of Allah (hagg Allah).

2. The right of the individual (hagg al-‘abd).

3. The right of Alléh lying side by side with the right of the
individual—with its two cases of predominance of one or the
other,

4, ‘The collective rights of the individuals or of the community,
also referred to as hag al-saltanah or hagg al-sultén.

‘The significance of this classification of rights for understanding
‘the structure of Islamic law and its classifications has already been
explained in the previous chapter. The most important thing to re-
member, however, is that each act to which a hukm is related must be
assigned a specific right or combination of rights. Each act, therefore,
must be a right of Allah, or the right of the individual, or a combina-
tion of the two. In the classification provided by jurists, the right of
the saltanah is not mentioned, because the further sub-classification
of this right is left to the ruler. It should be obvious, however, that
all acts related to ta‘sir offenses, to taxes other than zakdh, and a
host of other areas will all be affected by the right of the state, as
distinct from the right of Allah, Acts affecting the the right of Allah
involve duties owed to Allah alone, while the right of the state relates

obligations created by the state. As the causes, consequences,

ditions affecting the right of state vary with the passage oie
\@ fugaha’ saw no need to issue permanent rulings for them.

6.2. The subject (makkim ‘alayh)

‘The subject or the mahkum ‘alayh forms the fourth element of the
hukm shar, He is the person whose act invokes a hukm, In legal

*See tba Rushd, Bidayat al Mujtahed, i 303
See al-MawardI, al-Abkim al-Sultantyah, 237-8,

Tueories ov Istamic Law 75

parlance, he is known as the mukallaf. It is an essential condition’
for an obligation affecting this person that he have legal capacity,
whether he performs the act directly or through delegation. The first
requirement for this is that he be able to understand the communi-
In addition to this, there are a large
number of other conditions that must be fulfilled before the law can
ve against or for a person. These conditions are all related to
, known as ahliyah in juristic terminology. This topic ix
somewhat difficult, but very important at the same time,

6.2.1. Ahliyah or legal capacity —
‘The literal meaning of the word ahliyah (Lal) is absolute fitness or

ability, When we say that a person is capable of doing something or
of undertaking some work, it implies that he has the ability to do
80, We alio say that a person is capable of doing something when
‘we mean that the accomplishment of that task would be expected of
him,

Some jurists used the word in its literal sense to convey the legal
or technical meaning. The majority of the jurists, however, employ
the term in a restricted sense. This use associates it with the concept
of rights that underlies all laws. Thus, they define ahliyah as *the
ability or fitness to acquire rights and exercise them and to accept
duties and perform them.” This definition indicates two types of
capacity. These are called ahliyat al-wujib and ahliyat al-ada’ or the
capacity for acquisition (of rights) and the capacity for execution.

Capacity for acquisition enables a person to acquire both rights
and obligations, while capacity for execution gives him the ability to
exercise such rights and perform his duties. We may now examine
these two types of legal capacity in some detail.

Capacity for acquisition or ahliyat al-wujab
- Ahliyat al-wujud is defined as the ability of a human being to acquire
rights and obligations. In the opinion of some jurists, there is no
difference between the term dhimmah (%23) and the term ahliyat al-
wujib. They maintain that dhimmah is also defined as the ability to
make a distinction between these two terms, and consider dhimmah

as an imaginary container or vessel that holds both the capacity
for acquisition and the capacity for execution. It is the location or

76 ‘The Act and the Subject

place of residence for the two kinds of ity. In short, dhingmah—
is the
terms of his rights and obligations.

‘A closer examination reveals that the term dhimmah corresponds

exactly with the term personality in the law. A slave in early Roman
law was a “person,” because he was a human being, but he had

no “personality,” which was an attribute assigned by the law,* It

). In Islamic law,

.coording to al-Sarakhsi, dhimmah is the “trust” that was offered to
jhe mountains, but they refused; Man accepted it.

‘The manat of the capacity for acquisition. Mandt is a thing
|. The manat or basis for the
tence of the capacity for acquisition is the attribute of being a
uman. There is complete agreement among jurists that this form of
capacity is possessed by each human being irrespective of his being ~
a mukallaf.

Kinds of capacity for acquisition. Capacity for acquisition may
not be complete or may be deficient in some respects. In such a case
the law would classify it as defective capacity, The jurists use different
terms to differentiate between the kinds of this capacity. For the sake
of convenience we may follow the terms used by them,

Capacity for acquisition is first of two kinds: complete capacity
and ity. Complete capacity for acquisition is found in
a hu his makes him eligible for the acqui-

ition of all kinds of rights and obligations. Deficient or incomplete
capacity is established for an unborn child or the fetus (janin).
ficient capacity implies tl

only some rights are established for the
‘he reason is that the

janin is considered part of the mother in some respects. Thus, it is
free with the mother and is also sold as a part of her. An indepen-

dent personality is, therefore, not assigned to it. In other respects,

“Some modern Muslim writers, particularly those from the Arab countries,
equate ahliyat al-eujub with the concept of personality im the law. This, in our
view, in incorrect. It is the concept of dhimmah that is similar to the concept of
personality

Tueortes oF IsLamic Law 7

the janin enjoys s separate life and is preparing for separation from
the womb, Its personality is, therefore, considered deficient or incom-
plete. By virtue of this deficient capacity, the janin acquires
rights: freedom from slavery, inheritance, bequest, and paren
On. the other hand, the janin cannot be made liable for the satisfac-
tion of rights owed to others, A purchase made by the would-be walt
(guardian) on behalf of the janin cannot make the janin liable for
the payment of the price, Likewise, the maintenance of close relatives
and the membership of the ‘agilah cannot be enforced against the
Janin. Once the child is born, these rights can be enforced against
it, but not when the obligations were acquired during the gestation
period,

A deficient capacity for acquisition is also assigned to
man or to a corpse. Thus, amounts due on account of debts, bequest,
and funeral expenses are taken from the wealth of the dead man,
In law, the estate of the deceased person is assigned some kind of
intermediary status for this purpose, but this status is not the same as
a fictitious personality, Muslim jurists do not permit the acquisition
of new rights for the dead man, except those that are extensions of
acts initiated while the person was alive; these are credited to his
dhimmah. For example, if a person had thrown a net into the water
immediately before his death, the fish caught in the net after the
person's death belong to him. Likewise, if he had dug a pit before
his death with the intention of trapping someone in it, then the
diyah due as a result of someone falling in it is to be recovered from
such a person’s property. Further, any compensation due for property
destroyed by acts commencing before his death shall be recovered
from his property.

Capacity of a fictitious person. We have seen above that Mus-
lim jurists hold dhimmah to be the basis for capacity for acquisi-
tion and further determine that dhimmah is an attribute assigned to
human beings, and which entitles them to acquire rights and obli-
gations, On this assumption, capacity for acquisition cannot be as-
signed to a thing other than a living human being, nor have these
earlier jurists ever acknowledged the existence of dhimmah or capac-
ity for anything non-human. In fact, they have expressly denied such
& possibility.

Moderns Muslim writers, on the other hand, being faced with the
need to acknowledge the existence of a fictitious personality, as it

8 The Act and the Subject

forms the basis of the present socio-legal stracture, have claimed that
‘such a concept does exist in Islamic law. They rely for this on in-
stances like wagf, bayt al-mdl, and the estate of the deceased. These
assertions seem to be misplaced. ju-
it will
be found to clash with the provisions of this law, whether the area
is that of contracts, huddd, or constitutional law. In other words,
the idea of a fictitious person is incompatible with Islamic law as
‘expounded by the jurists. Let me show this by one example, Muslim
jurists insist that in the offense of sarigah (theft) liable to hadd is op-
‘erative where the property is owned by someone. The question arises
‘as to mosques, or to the bayt al-mdl, whether hadd can be awarded
in these cases. The former is considered to be property belonging to
Allah, while the latter is joint property in which the thief is deemed
to have a potential share. The Hudtid Ordinance pertaining to theft
issued in Pakistan in 1979 goes against the unanimous opinion of
the jurists and considers possession of stolen property sufficient for
awarding hadd, the condition of ownership deemed essential by the
jurists is excluded. This enables the awarding of hadd to persons who
have stolen property owned by fictitious persons.
‘The troth is that the

‘erate within the flexible sphere of the law, which has been described
earlier and will be referred to again in a later chapter. The fixed
part of the law does not need this concept and will reject it. If this
ncept is thrust upon the fixed part, a number of inconsistencies
develop in the law. The case of the flexible sphere is different.
‘he imdm can introduce the concept of a juristic person within the
ible sphere, but this should not affect the law operative in the
ced part,

We may raise a question here about the head of state. The office
of the head of state is a juristic person, but is it compatible with

Islamic law? The answer is left as an exercise for the reader.

Legal effects of the capacity for acquisition. The existence
or proof of rights and obligations against the dhimmah of a subject is
not an end in itself; the Lawgiver is concerned more with the exercise
of rights and the fulfillment of obligations. There is no difficulty in
such exercise or fulfillment when the subject enjoys full legal capacity.
In addition to this, the shari‘ah permits the exercise of rights and the
meeting of obligations in several other cases, such as the following:

Treories or Istamic Law 79

. Rights established for
such that they do not require acceptance. Likewise,
bligations and duties are not established against the unborn

A child possesses a complete capacity for acquisition =
‘ights and obligations, but

Ye
facilitate matters, this child is made liable by the shari'ah’
. These are listed

@ Pure financial transactions are established against the
dhimmah of the sabi. Though he cannot meet them per-
sonally due to the absence of the capacity for execution,
the Lawgi

damage caused to another's property, and for the main
tenance of his wives and near relatives. He is also liable,
except in the opinion of the Hanafi school, for the payment

apeemed mises

of zakdt

© Criminal liability does not exist in the person who
has not attained puberty, because he is not a mutallaf,
and the

fenses: punishments being deterrents for the offender his
self and not for those who represent them. This, however,

© The ‘ibddat are not obligatory on the sabi, as he does not
possess the capacity for execution,

3. Cases of imperfect capacity for acquisition. Capacity for
execution may be perfect or imperfect. Imperfect capacity is
The slave does not possess
‘ht of ownership, but he does have a capacity for acquirin
\bligations pertaining to ‘ibéddt, and for criminal offenses.’ A

Some might observe that slavery no longer exists, 20 why do we have to study
‘examples that mention slaves? The answer is that a nomber of legal principles
‘explained by the jurists may fall under this topic. To anderstand these principles,

80 The Act and the Subject

"woman, on the other hand, is said to possess an imperfect ca-
.. Those who hold this view deny her the
to be the head of state, the right to be a gddi (judge),
nd the right to testify in cases being tried under huddd and
provisions. In addition to this, she does not have the right
to divorce, like the right given to a man, she is given a share
in inheritance that is equal to half the share of male heirs,
and the diyah paid in compensation of her death is half that
of a man. These provisions have led certain Orientalists, like
Joseph Schacht, to observe that in Islamic law “a woman is
half a man.” Women who are struggling for the emancipation
‘of women and the acceptance of their rights in Muslim coun-
tries, whether or not they are influenced by the writings of the
Orientalists, have objected seriously to such a status granted to,
them, Demanding equality with men, they maintain that the
status of women should be the same as that of men, by which
they mean that their legal capacity should not be considered
imperfect or deficient in any way. The purpose here is not to
argue for one side or the other, but to identify the legal issues
involved. Reasons or solutions will become obvious once these
issues are grasped.

‘The most important issue appears to be that of the evidence
of women. This is split into two sub-issues, The first is whether
the evidence of women is excluded by the texts of the Qur'in

and Sunnah in cases of hudid? The usual answer given in reply
is that the evidence of women is excluded in such cases on the
basis of the Sunnah, which is also a source of law. These are
‘cases involving the right of Allah. The approach to this issue
is that somehow women have been deprived of a right. This
incorrect. Evidence in these cases, and in otheys too, is a
juty and not a right. Women have been spared the burden of
his duty. The purpose is to waive the penalty of hadd, which
y usually an extreme punishment, and to show mercy to the
accused in an indirect way. This, perhaps, is the intention of the
Lawgjver. Related to this is a misconception that the offense
of rape cannot be proved and punished with the evidence of
one woman. It is true that hadd cannot be awarded upon the
testimony of one woman, but that does not mean that no other

the discussions of issues related to slavery are sometimes unavoidable, Some of
these ismues may pertain to human rights

Tueonies oF Istamic Law 31

punishment can be awarded to the rapist on the basis of such
testimony. The ruler or the state has wide powers under the
doctrine of siyéaah to award an equally stiff penalty.

The second sub-issue is about the evidence of two women being
equal to that of one man. This requirement is derived from
a verte of the Qur'an, and is supported by the Sunnah. The
details of this problem cannot be discussed here. It is suggested,

testimony

it leads to the protection of rights.

‘The next issue is whether it is justified in the present times
to givea The answer is that
the La
‘The justification provided by scholars is that the Islamic legal
system places & much greater financial burden on the male in
terms of maintenance of his family and near ones. Such a bur-
den has not been placed on a woman. Further, a woman is paid
dower upon her marriage by the husband. This increases the
financial liability for males. The argument from the other side
may be that Islamic law, like any comprehensive legal system,
especially one that is a complete code of life, is to be applied as
a whole, in toto, not in pieces. In such a situation, is it possible
for a woman who is left all alone to go to a court of law and
enforcing her rights ask her brother, uncle, or cousin to support
her? It is obvious that many such rights that the law provides
her may not be enforceable today, as compared to other duties
that have been placed upon her,

As to the question of a woman not having a right to divorce the
husband, the jurists unanimously agree that such a right has
are, however, provisions
the law like takhyir and tamilik through which she may be

a
To explain this point, let us quote Ibn Rushd, the
famous philosopher and jurist, also known as Averries,

Procedures that are counted among the categories of di-
vorce, and which are considered to have specific ehkim,
are

i fing to Malik there is a differ-

The Act and the Subject

‘ence between famlik and takhyir (im this

is may
udiation or more, thus, the maa is entitled to deny her
right to more than one repudiation. Khiyér is differ-
‘ent from this, as far as it implies the execution of divorce

only has the choice to choose her husband or opt for irre-
vocable separation from him through the pronouncement
of three repudiations, but she is not entitled to choose a
single repudiatica

‘The right under tamiik, according to him (Malik) in one
narration, is not annulled even if it is not exercised by the
authorized woman for a long period of time, of till they
part from the session. According to a second narration
from him, the right under temlik stays with ber till she
revokes it or exercises it through repudiation. The differ-

Penns Lie pedantry
bey bles she secon wc gore ba i otha dor
not have that right. Al-Shafi'i said that statements like,
“choose yourself” or “your affair is in your hands” mean
the same thing, but this does not amount to granting the

80, and
wl he intends it to be a

single repudiation it is #0 and if he intends three repudie-
tions, then, that will be the case. He is entitled, according
to al-ShafiT, to deny her the right of repudiation itself, or
restrict her with respect to the number (of repudiations)
in both tathyir and tamlik
cording to him (al-Shafi'T), if she divorces herself it
cunts to a revocable divorce, which iaalso the ease ac-
ing to Malik in fami. AbG Hanifah and his disciples
said that granting a choice does not amount to divorce,
but if she divorces berself even through a single repudia-
tion in tamilit, it amounts to an irrevocable divorce. Al-
‘Thawrl said that bhigér and tomlik are the same thing
‘and there is no difference between them.
It in said that the acceptable statement is bers about the
number of repudiations in (amlék and the husband cannot,
rebut her statement. This opinion is related from ‘Ali and
Ibn al-Musayyib, and it was also adopted by al-Zubri and

THEORIES OF nc Law

‘AU. It is said that the woman, in the case of tamitk
is not entitled to divorce herself, except through a single
repudiation. This is related from Ibn ‘Abbas and ‘Umar,
may Allh be pleased with them both. It is reported that.
man.came to Ibn Mas'dd and said, “There was between
and my wife, the kind of relationship that exists
people (normally). She said (to me), "Had the power
{you possess over me, been in my hands, you would
known how I would treat you." I said to her, ‘In that

however, consult with the Amir al-Mu'minén, ‘Umag.” He
then met ‘Umar and related the case to him. ‘Umar said,
“Allah has given men what He did. If they desire to place
in the ‘of women, what Alléh has placed in their
then, dust in in their jaws. How did you decide
said, “I held it to be a single repudiation, and that
he atill bas a right over her.” ‘Umar said, “I hold it to be
the same, and if you had decided it differently | would
have considered you to be wrong.”

*
about the woman fis that she has
1 choice between divorce and holding fast to the nuptial
tie as long as she is in the session (of assignment), which
is also the opinion of al-ShafiT, Abd Hanifah, al-Awxa't,
and a group of other jurists of the provinces. According
to al-Shafi's, tamdik is like agency (wakilah), when he in-
tends divorce, and he has the right to retract it whenever
he likes, as long as divorce has not come into affect.

ye majority decided in favor of tamiik and fakhyir and
it to be a provision for women, because of what
Geese aks Messenger of Allah

his wives, ws. 'Avahah said “The Messenger of Allah (God's
peace and blessings be upon him) granted us a choice,
and we chose him so it did not amount to a divorce.”
‘The Zahirites, however, maintain that the meaning of this
would be that if they had opted for themselves, the Mes-

of Allah (God's peace and blessings be upon him)
would have divorced them, not that they could divorce

The Act and the Subject

themselves by the very option of divorce.
‘The majority also maintained the validity of takhyir and

option for his wives, and the meaning implied by this op-
tion is of irrevocability,
ik was of the view, in the case of tamlik, that the
s statement, to the extent that be did not intend
divorce thereby, is not to be accepted (in case of dispute)
when he makes such » claim, for it is an authorization
clear in ite meaning about placing of the right of divorce
AL-Shafi, because the words used are not

the apparent meaning of the text or to intention. He did
the same in takhyir
‘They agreed that he haa the right to deny her the (maxi-
mum) number (of repudiations), that is, through the im-
plication of the word temlit, as it does not carry an ad-
ditional meaning beyond the literal. Malik and al-Sbafi'l
held that if she divorced herself through his assignment
‘of authority to her, with a single repudiation, it would
be a revocable divorce, as divorce in legal usage is {
absuanah, Abi Hanifah held that it is irrevocable, for if
it in revocable it is of no use in view of what she expects
from it and also in view of what he intends thereby.
‘Those who maintained that she has the right to divorce
herself thrice through tamlit, and that the husband does
not have the right to deny her this, because the meaning
of tamlit, according to them, considers all the authority
possessed by the man to have passed on to the woman,
aid that she has a choice in the number of repudiations
the pronounces. Those who deemed tamlié to be a single
repudiation or a choice (restricted to it), held that it is
minimum (number) to which the term can be applied,
} & precaution for the sake of men, because the under-
reason for granting the authority of divcrce to men
the weaker rationality of women, their being normally
by emotions, and their inclination to disturb

at

Tueortes oF Istamic Law 85

‘The majority of the jurists maintained that if the woman
saeare hak ine: & (hen sie leash sever Fo

sult from either category (tamlik or tathyir). Second, that
both categories cause separation (divorce) between the
two (husband and wife). Third, that there is a distinc-
tion between akhyir and tamlik with respect to the right
acquired by the woman; that is, through tathyir she pos:
seases the right to an irrevocable divorce, and through
tamlik what is less than that. When we concede that it i
is said that she possesses a sin-

repudiation, It saad that it lead toa revocable divorce,
‘and it is said to an irrevocable divorce.

‘The words that a woman pronounces in takhyir and tamick
refer to the Aukm of words with which divorce is pro-
nounced insofar as they are explicit, indirect, or equivocal
‘The details will come up in the discussion of words used
for divorce,*

she liyah under
of woman
| the other half
as additional compensation. There is no doubt about the fact
that ‘today and are

equally efficient working
fact, some of them may be earning

The proposed law of gigdy and
goes a step further and makes no distinction between a
ale and female for purposes of valuation of diyah.

‘The reason why a woman cannot become a gddf or judge is
linked to the question of evidence. A gddf can only hear cases
in which he can also be an eligible witness. This is a qualifica-
tion for the gadf. As a woman cannot be a witness in cases of

“Ibu Rushd, Bidayat ol-Mujtahid, i, $3-SS

86 The Act and the Subject

hadd, she cannot be a ga¢i for hearing the cases and passing
sentence. The question of being a head of state is also similar.
‘The primary duty of a head of state is the implementation of
huddd (igémat ol-hudad), which again requires the qualifica-
tion of a witness for such cases. A woman is, therefore, con-
sidered ineligible for the job. In Pakistan, women judges today
are deciding cases under the hudid laws.

Capacity for execution or ahlfyat al-ada”

Capacity for execution (+135! iLal) is defined as the “capability of
a human being to issue statements and perform acts to which the
Lawelver has assigned certain legal effects.” This kind of capacity is
considered to be of three kinds:

er for the khifab jind’t. This is the

i ." In other words, wl
es such a capacity can acquire through his statements
and deeds a liability for the offenses constituted by such state-

ents or acts. This kind of capacity is known as the capacity
for criminal liability or the ability to comprehend the khitab
fina

* tht for the khitab of ‘ibadat. It is the capacity for

the issuance of words and performance of deeds the legal effects
which are produced in the shape of rewards or thawdb in the
jereafter, and also the freedom of the dhimmah in the present
ld, This is termed as the capacity for ‘ibadat or the capacity

1 the Rhitab of ‘ibadat.

‘apacity for the khifab of mu‘amalat. It is the capacity
for the issuance of words and the performance of deeds the
legal effects of which are the exercise of rights and the fulfill-
ment of obligations for contracts and other transactions, It may
be called the capacity for transactions or the capacity for the
bhitab of mu‘émalat.

‘The reason for separating the capacity for execution into these
three types is to indicate that a person may, for example, be in posses-
sion of the capacity for transactions, but not the capacity for punish-
ments. To put it differently, all three kinds of capacity may be found

Treories oF Istamic Law 87

in the person who is sane and a major, but one or more of these may
be lacking in other persons.

The mandt of chliyat cl-adé’, The mandf or basis of the ca
is ‘agi (intellect) and (rushd) discretion. “Agi
here impliei the full development of the mental faculty. As there is
no definitive method for checking whether this faculty is fully devel-
oped, the Lawgiver has associated it with buldgh or puberty. Th
a pubescent person is assumed to possess ‘ag! necessary for the
istence of the capacity for execution. This presumption, however,
rebuttable, and if it is proved that though a person has attained pi
berty, he does not yet possess ‘agl, capacity for execution cannot
assigned to such a person. This is the view of the majority of t!
jurists.

deficient capacity

on, even if his menti 0
op | "Thus, a minor (abi) ten poesesees‘tcreth
may be aseigned sach a capacity, for the &Aijab of mu‘émalAt. Again,
there is no way here of determining whether the minor has attaine
discretion. The Hanafi jurists have, therefore, fixed the minimum age
of seven years for assigning such a capacity; anyone over seven year
‘of age who has not yet attained puberty may be assigned such
capacity.

Deficient capacity is also assigned by the Hanafis to a person
who has attained puberty, but is not fully developed mentally, like
the ma‘tih (mentally retarded; idiot).

for execution ts, Wu

it

mn, Capacity
Deficient capacity is assigned to
sesses some discretion, or to 4 math who has attained puberty
lacks complete mental development.

‘The person who possesses deficient capacity is not subject to
the khitab ying’; he cannot, therefore, be held criminally liable. The
minor, however, is subjected to ta’dib—the reason being that the
khifab jind't is applicable to that person alone who comprehends the
khitab fully.

88 The Act and the Subject

With respect to the ‘ibadat, there are detailed discussions
whether the khifab is addressed to the sab and ma‘th by way of
nadb (recommendation) or khiyar (choice), or whether it is addressed
to them at all. There is no dispute that there is reward (thawdb) for
such a person for the performance of the ‘ibadat.

‘We are concerned here with the capacity of such a w
vitpes of eeoaen Ths Son abidy cama le at

types for this purpose:

1, Purely beneficial transactions. The transactions falling un-
der this category are the acceptance of a gift or of sadagah.
‘These are allowed to the person who has not attained puberty,
but who can discriminate and has been permitted by his walt
(guardian) to exercise such acceptance,

2. Purely harmful transactions. The granting of divorce, man-
umission (‘itg), charity (gadagah), loan (gard), and gift (hi-
bah), as well as the making of & trust (wagf) and bequest
(wasiyah) are considered transactions resulting in pure finan-
cial lows. These are not permitted to the sabi. mumayyiz (dis-
criminating minor)

3. ‘Transactions vacillating between profit and loss. Sale,
hire, partnership, and other such transactions are considered
valid if ratified by the walt.

‘The deficient capacity granted to the discriminating minor by
the Hanafis is also granted to the ma‘tih. The majority of the ju-
rists (jurahuir) oppose the Hanafis and refuse to acknowledge any
kind of capacity for the discriminating minor, They maintain that
the communication (khifab) is not directed toward such a minor at
all, and it is of no consequence whether the transactions are bene-
ficial or harmful. In practice, however, we find young boys minding
stores on behalf of their fathers, and often handling the transactions
exceptionally well.

Complete capacity. Complete capacity is established for a
human being when he or she attains full mental development, and
acquires the ability to discriminate. This stage is associated with
the external standard of puberty. The physical signs indicating the
attainment of puberty are the commencement of ejaculation in a
male and menstruation in a female. In the absence of these signs,

Tueories or Istamic Law 89

puberty is presumed at the age of fifteen in both males and females
according to the majority of the jurists, and at the age of eighteen
for males and seventeen for females according to Abi Hanifah.

Attaining buldgh (puberty) alone is not sufficient, however, for
‘a person to acquire complete capacity for execution. In addition to
puberty, the possession of rushd (discrimination; matvrity of actions)
in stipulated as well. The dali, or legal evidence, for this is the verse
of the Qur'an:

Make trial of orphans until they reach the age of marriage;
then if ye find sound judgement in them, release their
Property to them; but consume it not wastefully, nor in
haste against their growing up.”

‘This verse lays down clearly that there are two conditions that
must be fulfilled before the wealth of orphans can be handed over to
them, These are bultigh al-nikah and rushd,

The term rushd, according to the majority, signifies the handling
of financial matters in accordance with the dictates of reason. The
rashid is a person who can identify avenues of profit as well as loss,
‘and act accordingly to preserve his wealth. Rushd is the opposite
of safah (foolishness), which implies waste and prodigality. Shafi‘
jurists define rushd as maturity of actions in matters of finance as
well as of din, In their view, a person who has attained puberty and
is adept in dealing with financial matters cannot be called rashid,
unless he obeys the ahkdm of the shari‘ah in matters of “ibddat as
well.

A person, then, is eligible for taking over hin wealth if he is both a
baligh and a rashid. This is the general view. Aba Hanifah, however,
maintains that @ person who attains the age of twenty-five years,
must be delivered his property irrespective of his attaining rushd,
In addition to this, he maintains that if a person attains buligh and
rushd and is given his property, but subsequently loses his rushd,
while yet under twenty-five, he cannot be subjected to interdiction
(hajr). The majority of the jurists (jumhur) subject a person to
interdiction if he has not attained rushd or even when he loses it
subsequently, irrespective of his age.

On attaining complete capacity, an individual comes within the
purview of the different kinds of khitab. He, therefore, becomes liable

"Qur'an 4

90 ‘The Act and the Subject

to punishments because of the khitab jina't being directed towards
him, just as he becomes liable because of the titab of transactions
and ibadat,

The stages of the capacity for execution. The conditions
laid down by the Hanafi jurists indicate that there are three stages
through which an individual passes with respect to his capacity for

execution, These are:

1. The first stage is from

which is considered to be the age of seven years. During this
, the child is assumed to lack ‘agl and discretion com-
y, and is ineligible for the assignment of a capacity for
tion,

2, The second stage commences from the age of seven and contin-
wes up to acteal puberty othe gl agn paar, whichever
is earlier. Deficient capacity for execution is normally assigned

Juring this stage, as the individual possesses a certain amount
‘agl and discretion.

3. The final stage commences from fui vhpset rcberie cosh
legal age determined for it. On reaching this age the individual

assigned complete capacity for execution, and becomes eligi-

le for each kind of khitéb, An exception arises in the case of
safah that has already been explained, and the individual may
be placed under interdiction for some time.

6.2.2, Causes of defective capacity

‘The causes affecting capacity are found in those factors that prevent
capacity for acquisition and capacity for ezecution from taking full
effect, The existence of these factors may result in the total absenée
of capacity or in deficient or incomplete capacity, For purposes of
the present discussion, we may tefer to all such forms as defective
capacity.

The mandt for capacity for acquisition, as we have said, is
insdniyah, and it is death alone that can cause a change in this
kind of capacity. We have seen, however, that under certain circum-
stances a corpse may have such a capacity. ‘Ag! and rushd, on the
other hand, are the bases for capacity for execution, and each factor
that has the power to influence and affect the normal functioning of

‘Tueortes oF Istamic Law a

of the human mind can become a cause for defective capacity, Muslim
jurists discuss the causes of defective capacity under the conditions
of takiif. Thus, they include within this discussion the knowledge
of the ahkdm as well as the ability of the subject to perform acts.
‘This shows that many things that cannot be properly considered as
causes of defective capacity on the basis of the criteria provided above
are included within this discussion. These will be excluded from the
present discussion. This does not mean that those discussions are
not important, As an example, we may mention the rule that “igno-
rance of law is no excuse even in a layman.” This rule is true even
for Islamic law, but there may be cases where some exceptions are
made, Thus, the subject may be confused about the ruling on a an
issue, because there are more than one opinion based on conflicting
evidences. Such cases fall under the category of shubhah fi al-dalil
or doubt as to the evidence. There are other cases that are referred
to as those of shubhah ff al-‘agd or doubt about the legality of the
contract. Today, such cases are difficult to conceive, because the law
is codified and published with the authority of the state backing up a
tingle undisputed tule. It Is for this reason, perhaps, that the hudid
ordinances promulgated in Pakistan have ignored all such cases of
doubt.

It is pertinent to note that many of the causes of defective capac:
ity mentioned here will appear to the reader to be the same thing as
the general defenses in criminal law, or as other grounds for waiver
of liability in civil or ritual matter

‘Th

causes that are
m , and result from an act of the Lawgiver and Creator.
Under this heading, the jurists list ten causes: sighar (minority);

juntin (insanity); ‘atah (idiocy); nisyan (forgetfulness); nawem (sleep);
ighmd’ (unconsciousness; fainting); rigg (slavery); marad (illness);
hayd (menstruation); nifas (puerperium; post-natal state of woman);
and maut (death). We shall discuss a few of these here, the rest are
either obvious or have a greater bearing on ‘ibédat.

92 The Act and the Subject

- $ighar (Minority). It is the state or condition of a human being
after birth and before puberty. This, in fact, is not a cause of defective
capacity or even an obstacle in its way, but a necessary stage in the
growth of the human being. It is considered as a cause for noting its
effect upon capacity or ahliyah.

© Minority does not affect capacity for acquisition or ahliyat al-
wujdb, All rights and obligations are acquired as their estab-
lishment requires merely a dhimmah and the mandf (being a
human), which is the basis for the capacity for acquisition. Mi-
nority does not oppose the mandt. The jurists, therefore, main-
tain that the minor is liable for compensation for property de-
stroyed by him, for goods and services bought, for maintenance
of relatives, and also for zakdt according to some.

Capacity for execution or ahliyat al-ada’ requires ‘ag! for its
fulfillment, and this the non-discriminating minor (sabi ghayr
murayyiz) lacks, because he does not understand the khifdb.
He is, therefore, not liable for the ‘“ibédét, for financial trans-
actions, or for punishments. The Hanafis make an exception in
the case of the sabi mumayyiz or one who has attained some
discretion. The ‘ibédét of such a minor are rewarded in the
Hereafter, and it is a matter of controversy whether the khitab
‘of targhib or recommendation is addressed to him. He is not
liable for punishments, but financial transactions undertaken
by him are valid in certain cases. Transactions that are purely
harmful for such a minor, like gifting away of his property have
no legal effect. Transactions that are purely beneficial or those
that are evenly balanced between profit and loss are allowed,
with the prior permission of the guardian or his subsequent rat-
ification. The position of the sabi mumayyiz may be compared
with the contract for necessaries by a minor under sections 11
and 68 of the Pakistan Contract Act. The freedom allowed to
the sabf mumayyiz by the Hanafis is much wider than that
under the

Jungn (Insanity). Juniin has no effect on ahliyat al-wujilb, be-
cause rights and obligations are established for and against an in-
sane person, who is deemed liable for itlaf (destruction of property),
payment of diyah, and the like. The manat of such a capacity is

Tueories oF Istamic Law 3

insdniyah, and the majnan is a human being. Junun, however, com-
pletely negates the ahiiyat al-adé', because of lack of ‘agl. The insane
person, therefore, has no liability for ‘ibadat or punishments, and all
his transactions are void.

‘Atah (Idiocy). It is a state in which a person at times speaks
like a sane and normal person, while at others he is like a mad man,
Tt is also described as a state in which a grown-up has the mind of
a child. The capacity of an idiot is deemed equivalent to that of a
sabi murmayyiz, who can be permitted by bis guardian to undertake
some transactions.

Sleep and fits of fainting. Sleep and fits of fainting have rele-
vance for purposes of ‘ibddat, as well as for crimes and torts. They
do not affect ahliyat al-wujub, because the attribute of insdntyah is
intact. Persons in such a condition, however, do not understand the
bhitab, Their capacity to understand things is temporarily affected
and prevented from normal functioning. The liability for missed
“ibddat lingers against such a person and these have to be performed
as qada’ (delayed performance). There is no liability for punishments
and transactions. If a person, while sleeping, falls on a child during
sleep and kills it, there is no liability for punishment, but compensa-
tion is another matter for which there may be strict lability.*

fulness. This is astate in which a person is not very careful
about things though he has full knowledge of them, as distinguished
from sleep and fits of fainting in which such knowledge is lacking.
Forgetfulness does not affect ahliyat al-wujtib nor does it affect the
capacity for execution. The khitdb, however, becomes operative as
soon as the person remembers. Transactions undertaken by such a
person are valid and enforceable against him.

Marad al-maut (Death-illness). ‘This is a condition in which
the mind of a sick person is dominated by the fact that he will die
because of his illness. It is of no consequence whether the person

“This means that loss of life bas to be compensated anyway, irrespective of
intention to harm. In traditional Islamic law, the barden in such cases is placed
upon the ‘agulah, which is the tribe or group with which an individoal is considered
to be associated.

4 The Act and the Subject

actually dies from this illness or from something else. Two conditions
must be met before an illness may be declared a death-illness:

© The deceased person must be convinced that he is approach-
ing death, irrespective of the nature of the disease. Diseases
like common colds and headaches, however, are not taken into
account for such purposes. Some jurists associate other circum-
stances with this state, like a person on a ship that is caught
in a storm, of like a person facing a death sentence.

Death should follow such a conviction, even if it is not caused
by the feared illness.

Some jurists stipulate a third condition here by saying that
death must occur within one year of the commencement of
illness, because any period above this would mean that the
person is accustomed to his illness and that the fear of death
is remote,

Marad al-mawt has no effect on the capacity for acquisition or
* on the capacity for execution, and it is in fact a condition of takli/,
because it is the capacity to perform an act that is affected here and
not the capacity to understand it,
‘A person suffering from such an illness is prohibited from entering,
ito transactions that are in excess of one-third of his wealth, In other
rds, it takes the hukm of wasiyah. This condition is stipulated to
rrotect the rights of the heirs. The reason assigned is that the rights
of the heirs get linked to the estate as soon as marad al-mawt takes
hold, The Lawgiver has laid down that such rights are to come into
play after the death of the person, but to protect the rights of the
heirs and creditors it is assumed that death has already occurred,
The justification provided is that the transactions of such a person
are not those of one who wishes to live, but of one who is ready jo
depart.
The following rights are attached to the estate of the person suf-
fering from marad al-mawt:

© Rights of creditors. The creditors have a right prior to all, even
if the debts consume all the estate.

© Rights of beneficiaries. The rights of beneficiaries restrict the
transactions to one-third of the estate, however, amounts in
excess of one-third will be valid if permitted by the heirs.

Tukontes oF Istamic Law 95

© Rights of the heirs. These rights are Unked to the estate from
the time of the commencement of illness, and any transactions
undertaken! by the sick person will be assigned ahkam as fol:
lows:

1, Transactions with a counter-value. If the person suffering
from death-iilness concludes a contract of sale with no
apparent loss in it, that is, at the market value, then the
creditors or the heits cannot have it set aside. It is to
be assumed that such a sale was undertaken to fulfill his
genuine needs and not with the intention to deprive his
creditors or heirs, Abi Hanifah maintains that if such a
sale is made to one of the heirs, it is to be declared as
void even if it is at market value. The two disciples of
AbG Hanifah, AbG YOsuf and al-Shayb&ni, maintain that
the sale is valid. The difference of opinion is due to the
question whether the right of the heirs is linked to the
‘ayn (substance) of the thing or to its value.

2. Transactions without « counter-value. If the transaction ix
a hibah, wagf, sadagah, or a sale at less than the market
value, or a purchase at more than the market value, then
such a transaction will be restricted to one-third of the
value of the estate, after the creditors have been satisfied

‘Three conditions must be fulfilled, before the rights of the credi-
tors can come into play:

(a) That the transaction was without a counter-value or without
adequate counter-value, This would cover transactions like gift,
charity, wag/, sale at discount, or purchase at a premium.

(b) That the transaction involves the transfer of a thing (‘ayn) it
self and not its use, provided that the benefit conferred through
use will terminate upon the death of the owner. Some Hanafis
do not consider the benefits arising from the use of a thing as
mal, The use of land, or of a house, or of an animal are ex-
amples that explain this case. The majority (jumhur) consider
the use of benefits as mal.

(c) That the transaction must be in a‘ydn (substance of things)
and not in the revenue or profit derived from them, Any as-
signment of profits arising from a sharikah or mudarabah will
not be affected by this condition.

96 The Act and the Subject

Besides transactions, any admission or acknowledgement of debts
by the person suffering from marad al-mawt (death-illness) may also
invoke the rights of creditors and heirs. Al-Shafi'l is of the opin-
jon that acknowledgement by a person suffering from death-illness is
valid and is not affected by the rights of the creditors or the heirs.
‘The reason he assigns is that a person approaching death would nor-
mally tell the truth, even if he is a habitual liar. The Hanafis, on the
other hand, make a distinction between two cases:

(a) Acknowledgement of debt in favor of an heir: An acknowledge-
ment in favor of an heir can have legal effects if the rest of the
heirs permit it. This is due to the apprehension that one heir
may have been preferred over the others.

(b) Acknowledgement of debt in favor of a stranger: An acknowl-
edgement favoring a stranger is valid. These debts are called
duytin al-marag and are to be paid after all other debts, called
debts of health, have been satisfied.

The Malikis distinguish between cases where an allegation of a
“bond of affection” can be made, that is, where a possibility of undue
influence is likely. For example in the case of a wife, close relative, or
friend, The basis is the bond existing between them and not the blood
relationship. Ibn Rushd has the following to say, when he invokes the
principle of maslahah to explain the issue:

‘The rejection of the permiasibility of marriage with the inten-
tion of the inclusion of an additional heir is an analogy based
upon maglahah, which is not permitted according to the ma-
jority of the fugaha”. Taking interests into account in a genus”
that is remote from the genus that is desired for the establish-
ment of the hukm according to (the principle of) maplahah led
some jurists to the conclusion that upholding mch an opinion
amounts to legislating additional law, and the adoption of such
‘an analogy dilutes the principle of submission to the shari'ah,
neither adding to it nor detracting from it. Yet, reluctance to
pay attention to maslahah might cause the people to be pushed,
because of a lack of precedents in this genus, toward injustice.
Such interests should be brought to the scholars of the hikmah
(philosophy) of the law, the learned who will not be accused
of judging by it, especially nowadays when the qualified per-
sons think that the adoption of the letter of the law (apparent

“Here genus refers to the genera of underlying causes.

‘Tuonigs of Istamic Law ST

meaning) leads to injustice. The proper methodology of the
learned echolar inthis shoeld be to enansine the ersSence in

ras letps: Herp heed eoydberlpstirenptorifieclact
do upon the strength of his skill, for it is not possible to lay
down fixed limits for the service. This (situation) is usually
faced in the profession of medicine and also in various other
professions."

Acquired causes of defective capacity

Acquired causes are those that are created by Man or in which human
will and choice are the basic factors. Muslim jurists list seven such
causes; ignorance, intoxication, jest, safeh (folly), journey (safar),
mistake, and coercion. We will discuss some of the important causes,
noting their effects on the capacity for acquisition and on the capacity
for execution.

Intoxication. Drunkenness is a state caused in a human being due
to the use of an intoxicant, which temporarily suspends the proper
functioning of the mental faculty.

Intoxication does not cause a change in the capacity for acquisi-
thon, as its basis is the attribute of being a human. Thus, a drunken
person possesses a dhimmah with a complete capacity for acquisition,
and he is held liable for destruction of life and property, and also for
all obligations, for maintenance, and even for zakat. All these duties
and obligations require the existence of the capacity for acquisition
alone, and intoxication does not negate it.

‘The basis for the capacity for execution, on the other hand, is
‘agl and discretion; these are negated in the case of the drunken
person by the state of drunkenness. The khitéb is not addressed to
the drunken person, because he does not comprehend it, The state
of such a person is worse than that of one who is asleep, for the
latter can be awakened; it is worse than that of an idiot, who may
understand parts of the speech addressed to him.

Rushd, Bidéyat al- Mustahid, i, 35.

98 The Act and the Subject

‘The jurists agree unanimously that the thitdb is not directed
toward the intoxicated person if such intoxication has been caused
by the legal use of intoxicants. For example, the person who has
consumed liquor without knowing what it is or when he has done
so under coercion or under duress to save his life. In such cases, the
hukm for this person will be the same as that of the person under a
spell of fainting.

Muslim jurists disagree about the person who is intoxicated when
‘uch intoxication is caused by prohibited means. The Hanafis and
some other jurists do not consider such a cause to have any effect on
the capacity for execution and on the understanding of the khitdb,
‘Thus, the ‘ibdddt are established against such a person and he will
be held liable for delayed performance (gada’), along with the ac-
companying sin. Any transaction or acknowledgement he makes is
valid and enforceable against him. He acquires criminal liability for
acts committed in such a state, though he can retract his confession
made in this state regarding a case of hudéd, as these are pure rights
of Allah. The argument provided by the Hanafis is that intoxication
is a crime and as such cannot be an excuse for waiving punishments.
Further, one reason why intoxication has been prohibited ir that it
leads to other khaba ‘ith. Moreover, if the acts of the drunken por-
son are to be exempted from liability, it will become a means for
the commission of otfenses, and for evading Uability. Relying on the
verse, “O ye believers, approach not prayer when you are intoxicated,
until you know what you say,”"! they maintain that it is obvious that
the khitdd is addressed to the drunken person and he is expected to
understand the meaning and import of the verse even whea he °
taxicated, If this is not the interpretation, it would amount to saying
to a person under a spell of madness, “Do not commit such an act
when you are insane.” It is for this reason that the drunken person
is held lable for his acts,

Some jurists are of the opinion that an intoxicated person has no
capacity for execution, because his ‘ag! is completely impaired by the
state of intoxication, They maintain that the Lawgiver has aleady
provided a penalty for the offense of intoxication and holding him
liable for his transactions as well, that is, those undertaken in such
a state, would amount to punishing him twice for the same offense,
& kind of double jeopardy. They argue that the verse about avoiding
prayers in an intoxicated state is actually addressed to a sober person

“Qur'ta 4:43

Tueonses oF Istamic Law 99

telling him to avoid becoming intoxicated before the time of prayer,
an act over which he has control, as compared to the person subject
to fits of madness over which he has no control.

Modern jurists try to prefer the second opinion as it may be
closer to some forms of Western law. It must be noted, however, that
coneriaene aie 18 x Pome Mt Beltetis a, gd 3 ay Dots po fs
the law.

Jest. When a person uses words without intending to convey either
their primary or their secondary meanings, that is, their denotations
of their connotations, he is said to speak in jest (haz/), Such a person
may, for instance, use words employed for the contract of marriage,
‘but does not intend the hukm (effect) of such a contract.

Speaking in jest has no effect on the capacity for acquisition;
rights as well as obligations will, therefore, be acquired, The basis of
insdnfyah required for this kind of capacity is not altered by jokes.

Hast ot jest cannot negate the capacity for execution either, be-
cause such a person has not lost his intellect or discretion, Contracts,
on the other hand, require consent and willingness to give rise to legal
effects. The person speaking in jest does bring about the apparent
form (gighah) of the contract, but has not given his consent in real-
ity. The Hanafis, therefore, consider the transactions of such a person
as invalid, except transactions like marriage, divorce, manumission,
rujd' (retraction), and the like. This is based on the tradition that
says, “Three things intended seriously are taken seriously, and if in.
tended in jest are also taken seriously; marriage, divorce, and the
freeing of a slave.” Some jurists do not maintain this exemption, and
treat all statements made jn jost as being ineffective. The Shifi'is
maintain that statements made in jest are to be considered valid
at all times, because the person has brought about the cause—the
sighah (form)—and rust, therefore, bear the consequences.

Folly (Safah). This defect concerns financial transactions, that
is, transactions undertaken carelessly and in » manner that a prudent
person is likely to avoid. The result is foolish waste and squandering
of property.

The tendency in a person to waste his property affects neither
his capacity for acquisition nor his capacity for execution. The effect
of safah is that a person, who has attained puberty, is subjected to
interdiction (hajr) till such time that he mends his ways. This view
is upheld by the majority, It is based upon the necessity (darwrah) of

100 The Act and the Subject

preserving his wealth, because preservation of wealth is an acknowl-
edged purpose of the law. Aba Hanifah maintains that interdiction
can last only till the age of twenty-five, after which the property
of the individual is to be delivered to him, because at this age the
individual is to be preferred over property.

Coercion and duress (ferah). [krah is a situation in which one
is forced to do something without his willingness. It has no effect
either on the capacity for acquisition or the capacity for execution,
because this state does not affect life or reason and discretion. It
does, however, negate free consent and willingness.

Effect on free will. The jurists disagree about the extent to
which ikrah can affect free will, The views of these jurists may be
classified into two opinions:

1. The first opinion maintains that ikrah is an obstacle in the
way of taklif (creation of an obligation). Thus, the khifdb is
not directed toward a person under coercion or under duress,
because this person is prevented from understanding the khifab.
Among those who hold this opinion are Shafi'l jurists, who
maintain that free will is a condition of taklif. Ikrah, according
to the Shafi'ls, arises under a threat of death, hurt, perpetual
confinement, and the like. It does not arise for causes of a lesser
gravity, like a threat to property. Jkrdh, defined this way, is in
their view, divided into two kinds:

a. Justified coercion. This is like the order of a gadf directing
a debtor to pay his debts to his creditors, or his command
to a man to divorce his wife after the passage of the period
of ié", a8 required by Shafi") law. This kind of ikrah does
not affect the free will of a person, as the duty is imposed
by the Lawgiver, Thus, any transaction in property un-
dertaken under coercion for paying off creditors shall not
be declared void,
Unjustified coercion. Coercion without justification is
again of two types. The first type is where acts commit-
ted are legally permissible under coercion, Such acts, if
committed through words or deeds, have no legal effect
and are considered void. If these acts can be attributed
to a third person, then, they are attributed to the person
coercing or threatening another. For example, compensa-
tion for property destroyed through coercion shall be paid
by the person who coerces the other. The second type are

oa

Tweortes or Istamic Law 101

acts that are legally prohibited, like murder, rape, etc. In
such cases the person coerced shall be fully liable along
with the person who coerced him.

2, The second opinion is held by the Hanafis, who divide ikrah

into three types:

a. First is coercion that negates free will or choice. This is

coercion under threat of death or loss of limb.

'b. The second type is coercion that negates consent, but
makes free will irregular or fasid. This is brought about by
confinement for a Jong period or by beating and torture
that does not lead to loss of life or limb,

. The third type is thrah that does not negate consent nor
does it make free will fasid. The example is confinement
of close relatives, Some Hanafi jurists do not accept this
third category, and link it with one of the categories above,
depending upon the nature of the threat to dear ones.

°

Effect of coercion on legal capacity. The Hanafix maintain
that the condition of taklif is the existence of the right to choose
and not its validity (sihhah). Irregular or fasid free will, they say, is
sufficient for the existence of faklif. In all the above cases of ikrah,
free will is not invalid (batil) though it may be irregular. Taklif,
therefore, may accompany ikrah.

‘To facilitate the understanding of the act, for which coercion is
taking place, the Hanafis divide it into three types:

1. Transactions, These are divided into two kinds, on the basis of
the effect of ikrdh:

‘&. First are transactions that do not accept rescission, and
do not depend upon consent, for example, divorce, manu-
mission, marriage, retraction of divorce, zihdr, ia’, ‘afw
(forgiveness) in intentional murder, and oath (yamin.)
All these transactions are valid under coercion, because
they amount to a termination (isgaf) ot relinquishment of
a right; and relinquishment cannot be reverted, because
these transactions are not dependent on consent.

b. Second are transactions that accept rescission or revoca-
tion and depend upon consent. These are like sale, mort-
gage, hire, and other commutative contracts. These con-
tracts accept rescission and depend upon the existence of

02 The Act and the Subject

free consent. The hukm of such contracts concluded’ un-
der coercion is that they are irregular (fasid.) They can
be ratified by the coerced party, after coercion has ceased
to exist, in which case they are declared as valid (sahih).

2. Admissions and confessions. All admissions and confessions, in
order to be valid, must be accompanied by free will,

3. Acts in general. Acts, for this purpase, are divided into two
kinds by the Hanafi jurists.

a. First is the case when the coerced is a mere instrument
in the hands of another, like a person picking up another
and throwing him upon another thereby causing death,
or hurt, or causing damage to property. If A causes B to
fire at a bush knowing that C is hiding behind it, thus,
causing the death of C, then, A shall be guilty of murder,
while B will be an instrument in his hand. Other cases
can be imagined, In such cases the act is attributed not
to the instrument, but to one who caused him to move,

'b. Second is the case when the coerced cannot become an
instrument in the hands of another, for example, in the
commission of zind or eating of food. In such a case, the
person coerced is fully aware of his actions. Here the per-
son coerced is guilty of 2ind or for compensating property
consumed. In the case of drinking of khamr, however, hadd
is waived on grounds of shubhah.

The study of all the four elements of the hukm shar't is now com:
plete, and we may move to the examination of the union of primary
and secondary rules where the interdependence and interaction of
the four elements will be seen.

Chapter 7

The Union of Primary
and Secondary Rules

In a previous chapter wo have tried to understand the meaning of figh
and of uy! al-figh.! We have analyzed and understood each of the
four elements of the hukm shar’é.? It was stated that the law comes
into action when all these elements interact. How these elements come
together and facilitate the operation of the law may be explained
both in terms of Islamic law as well as in terms of positive law. For
the explanation of the interaction in law we may recall mentioning
the picture of a legal system presented by H.L.A. Hart. It would be
instructive to examine some of Hart's ideas in a little more detail.
Hart maintains that a society that is run by primary obligation.

creating rules alone is no more than a primitive society. Some addi-
tional conditions must be satisfied. These he explains by examining
the defects of a primitive organization. The first defect is that when
a doubt arises as to what the rules are, and there is no procedure for
settling this by reference to an authoritative text or to an official, an
uncertainty is created about the rules, This implies that certain rules
are required that help remove this uncertainty. The second defect he
calls the static nature of the laws, because there is no procedure for
deliberately adapting these rules to changing circumstances, “The
only mode of change in the rules known to such a society will be
the slow process of growth, whereby courses of conduct once thought
optional become first habitual or usual, and then obligatory, and the

'See chapter 3,
*See chapters 4, 5, and 6,

104 The Union of Primary and Secondary Rules

converse process of decay, when deviations once severely dealt with
are first tolerated and then pass unnoticed.”® This shows that some
other rules are required that help eliminate the old rules and intro-
duce new ones, The third defect of this simple form of social life
is the inefficiency of the diffuse social pressure by which the rules
are maintained. Disputes will always occur as to whether a rule has
actually been violated, If there is no machinery to authoritatively
ascertain this violation the system will become inefficient.*

Hart says that “[t)he remedy for all of these three main defects in
this simplest form of social structure consists in supplementing the
primary rules of obligation with secondary rules which are rules of a
different kind, The introduction of the remedy for each defect might,
in itself, be considered a step from the pre-legal into the legal world.”*
‘The remedy for the defect of uncertainty is the introduction of what
Hart calls the “rule of recognition.” This rule helps identify all valid
taw.® Islamic law has its own rule of recognition, and we will discuss
is in the final part of the book at some length. The second defect,
that Is, the static naturé of the law is removed by introducing “rules
of change.”? Does Islamic law have rules of change? If so, what part
of the law is subject to change? As has been indicated earlier, and
will be explained in detail in the following chapter, Islamic law has an
inner core that is not subject to change. This part of the law has been
derived directly from the texts and, therefore, cannot be changed by
any other primary or secondary rule. This immutable part, however,
constitutes only five per cent or less of the entire legal system. The
other part is flexible and revolves around this fixed part seeking its
direction, bearings, and principles from the inner core. This flexible
part changes with each change in circumstances. Islamic law provides
a detailed methodology for effecting this change. The third defect
requires for its removal a machinery for identifying viglations, This,
of course, is provided by Islamic law. The operation of secondary
rules of this type will be coming up on the proper occasions. For the
present we are concerned with certain other kinds of secondary rules
that Hart has described. These rules, to use Hart's terminology, are

"Hart, Concept of Law, 90.
“Thid. 49-91

“thd. 91

"thi. 92

"Mhid, 99

Tuortes oF Istamic Law 105

“parasitic upon or secondary to”® the obligation-creating rules, In
other words, they facilitate the operation of the obligation-creating
rules.

7.1. The union of rules

‘The operation of the primary and secondary rules in interaction with
each other in Islamic law is essentially the same as that in the law.
‘The complexity within the Islamic system, however, increases due
to a large number of categories about which the law is indifferent,
‘The first category is that of rights. In Islamic law, the primary thing
that needs to be determined is what kind of right is invoked by a
law, Is it & right of Allah? Is it the right of the individual? Is it a
combination of both? Is it a right of state? This in turn depends on
the classification of the law that has been described earlier. If the law
relates to worship or to the hudidd, for example, the right invoked is
the right of Allah. If the act being judged or the rule violated belongs
to the area of obligations, it is usually the right of the individual that
, is invoked. If the rule violated is that of retaliation (gisds), then two
kinds of rights are Invoked: the right of Allah and the right of the
individual, with the right of the individual being predominant.

‘The rule being verified and the right determined, the next step
is to detertnine whether the cause has been brought about. Thi
achieved through the due process of law, that is, by following a de-
termined procedure in court and by adducing proper and admissible
evidence, Once this has been proved the condition, being a secondary
rule, is verified. After this, the official finally turns to the capacity of
the individual to see if general defenses or obstacles are to be found
in the path of operation of the hubm. Let us examine this in a little
more detail,

For a hukm to become operative and the consequential obligation
to arise, the cause of the hukm has to be brought about. The cause is
brought about sometimes by the Lawgiver Himself, sometimes by the
subject, and sometimes through indirect causes. Thus, the cause for
the evening prayer—the setting of the sun—is brought about by the
Lawgiver, while the cause for the obligation of the hadd penalty
brought about by the subject, like theft for the cutting of the hand.

upon the hukm that is set in motion a related right
is invoked. This right entails certain consequences or may in turn

106 The Union of Primary and Secondary Rules

invoke certain conditions or exemptions. For example, in the case of
murder a combination of rights is invoked: the right of Allah as well
as the right of the individual. The effect of invoking the right of Allah
is that a certain kind of doubt (shubhah) acknowledged by Islamic
law may come into operation and would result in the withholding or
waiving of the punishment. This type of shubhah operates only with
the right of Allah, As soon as the hadd penalty is waived in this case,
and the right of Allah is released, the right of individuals collectively,
that is, the right of the state may come into operation. In such a case,
the existing shubhah, which was effective in the case of the right of
Allah, is of no consequence, and ta‘sir may be awarded.

‘The general sequence of operations is to first check the cause.
By checking the cause we mean, for example, that a person accused
of the offense of theft is to be tried in a court of law to prove that
he actually was guilty of bringing about the cause. For example,
repentance and returning of the property by the offender before he is
apprehended. Once this is proved the right involved is checked. Any
benefits that can go to the accused because of this right are to be
granted, and this may change the nature of the charge ot indictment.
‘When the cause is being established, the associated conditions are
also to be established, Thus, in the case of theft, the court must
establish that all the conditions pertaining to hirz (breaking into a
place of safe-custody) and nigdb (stealing of a certain minimum value)
have also been established. In addition to this, all the conditions
specific to evidence and procedure must also be met. After all this
has been done, if an impediment (mdni‘) exists, as when the offender
is a minor or insane, the hukm will still not come into effect, and
‘no penalty will be awarded, If the penalty is awarded it becomes a
cause for another obligation, the obligation placed upon the imam
to arrange the execution of the sentence. :

In this case, the primary rule is the prohibition of theft with its
associated penalty. The rest is all being settled by the secondary rules
that facilitate, if one may say so, the operation of the primary rule.
It is through this union of the primary and secondary rules that the
law operates and is set in motion. The elements of the hukm shart
all come into play. It is the Lawgiver Who determines what a cause is
for a hukm to come into action and what is its consequential penalty
or remedy. It is the Lawgiver Who places the obligation on the rulers
to carry out the operation of the law, and it is He Who determines
what right is affected. Once this is done, it is the hukm that comes
into motion through its associated right. The final effect of all this

‘Tueonigs oF IsLamic Law 107

is that the subject who brought about the cause is paced under a
liability or is assigned a penalty if he has the required legal capacity.

The same can be said about any kind of hukm. Take for instance
the imposition of zakdh. The cause is the existence of wealth. The
condition is the passage of a year (haw!) The act is related to the
right of Allah. The obstacle (mani‘) may be the existence of debts.
If all the conditions are met, and there is no obstacle, this right of
Allah must be satisfied, and payment of zakih becomes obligatory
upon the subject (mukallaf).

To understand the operation of Islamic law and its structure,
it is essential to keep this sequence of events in mind. The key is to
understand that the obligation-creating rules are being helped by the
secondary rules listed under the category of the determining hukm.
These primary and secondary rules are distributed among the four
elements of the hukm. shart that we have discussed in the previous
chapters.

‘We may now turn to the final chapter of this part. This relates
to the fixed and flexible spheres of law. As the explanation of these
eres is an addition over the traditional method of describing ued
al-figh, nothing much will be lost if the reader decides to skip it and
move to the next part.

Chapter 8

Doctrines of Hadd and
the Spheres of Law

Our understanding of the Islamic legal system and the nature of its
law will not be complete if we do not explain what we mean by the
and flexible parts of the law or law the discovery of which falls
jin the domain of the jurist and law the development of which is
within the jurisdiction of the imdm, that is, the state. This will be
the burden of this chapter. Another basis for this chapter are some
observations made in different quarters about the Islamic legal sys-
tem. An attempt will be made here to clarify the misconceptions on
which these observations are based. The first observation is a favorite
theme with Western scholars, like Schacht, while the second is in the
shape of a fundamental question raised by the Federal Shariat Court
of Pakistan.

‘Western scholars who have written about Islamic law consider the
shari‘ah to be fixed and immutable. This, they say, led to the rigidity
of its law, and the rulers had to resort to secular laws that had noth-
ing to do with the shari‘ah. The result was a split in the Islamic legal
system, and the fugaha’ and their works became increasingly isolated
from the actual administration of justice. To support this assertion»
they also state that the fugahd’ themselves began resorting to hiyal,
which the Orientalists erroneously designate as legal fictions,’ in or-
der to overcome the rigidity that had crept into law. The question
that emerges from this observation of Western scholars is whether
‘the sharvah is fixed and immutable, hence rigid, and whether this

- figidity confines the shari‘ah to a limited role in matters of state?

‘See Appendix |.

0 The Doctrines of Hadd and the Spheres of Law

The second observation is not directly related to the first, yet the
answer for both is to be found in the same place. The Federal Shariat
Court of Pakistan, while hearing a petition on the question of rajm
(stoning to death for unlawful sexual intercourse by a married per-
son), indirectly questioned the doctrine of hadd in Islamic criminal
law. The Court pointed out that the term hadd had been used on
fourteen (thirteen?) different occasion’ in the Qur'an, in the sense
of restrictions or bounds set by Allah. None of these uses gives the
meaning of hadd as a fixed penalty, which is generally the meaning
assigned to the term hadd by the jurists. The Court added that it
also appears from the traditions of the Prophet and the sayings of
the Companions that the word hadd was used in the sense of pun-
ishment alone and not “fixed punishment.” The traditions, thus, do
‘not establish the meaning assigned to it by the fugahd’. In addition
to this, the jurists also differ about the number of punishments to be
treated as hadd. These range from four to seventeen. On the basis of
the definition of hadd given by the fugahd’, all punishments awarded
by the Prophet should have been treated as hadd, but the Court
found it to be very strange that only a few were classified as such.
‘The punishment of drinking of wine (shurb al-khamr) was not found
in the Qur'in, and was not uniform in the Sunnah yet, it has been
treated as hadd. There is also no distinction between hadd and ta'zir
in the Sunnah. Concluding these observations, former Chief Justice
of the Federal Shariat Court, Justice Aftab Hussain said: “My find-
ing is that the word hadd has been defined by the jurists a long time

/ after the death of the Holy Prophet.”?

‘This, indeed, is an important question raised by the Court. If
the concept of hadd is changed, and all punishments are classified as
ta‘zir, or all are classified as hadd, the entire structure of criminal law
as erected by the fugaha’ is bound to collapse and would peve to be
built on a different foundation. There is no difficulty in agreeing on
the point that the division into hadd and ta‘zir is a later development,
but the question as: some penalties as hadd,
and not others, needs to be explained. To do so we may reframe the
question. Is the classification of crimes into those of hadd, ta‘zir, and
siydsah really necessary? If so, how is this classification justified?

We shall begin by stating the solution, which is actually a de
scription of a unique feature of Islamic law. This will be followed by
statement of the reason why Western scholars have not been able

*Hasoor Bakhsh ys. The State, PLD 1983 FSC 1

Tueoaies oF Istamic Law i

to understand the structure of Islamic law and have come up with
their theory about the rigidity of the sheri'ah and the “separation
between theory and practice.” A general theory shall be built up.
Once this has been explained, the theory shall be applied to the law
of crimes to explain the second issue about the classification into
hadd and ta'zir. Some of these explanations assume that the reader
has a basic knowledge of Islamic law, particularly of Islamic criminal
law. Efforts will be made, however, to simplify the problem so that-
all readers can benefit from it.

8.1. The spheres of Islamic law

The word evolution when used with Islamic law is likely to evoke
different reactions. Those who feel that the sharf‘ah was laid down
‘once and for all may reject the idea of evolution in Islamic law, Their
‘objections are partly justified. But, as Islamic law is meant to apply
to every aspect of a Muslim's life in all ages, it follows that it has
to evolve and grow like any other legal system so that it may be
able to cater to the demands of the changing times, This is exactly
what it does and Is designed to do. The shari‘ah may be fixed and
immutable at its central core, as is claimed by some,® but is not so in
its extensions. The truth is that Islamic law grew gradually to become
a complete legal system, The nature of its growth resembles that of a
swed embedged in fertile soil. The seed contained withia it the genetic
code of the entire legal system. It grew into a living organism that
would constantly adapt itself to the changes in its environment. The
Jaws in the Qur'an and the Sunnah of the Prophet, it is true, have
‘been determined and fixed for al] times to come, These.comprise the
core legal concepts, the genetic code, so to say. As Muhammad was
the last of the prophets, there is no chance of mutation in these laws,
Calls for ijtihdd in the present age, if they are meant to alter such
fixed laws, are futile and unnecessary, These fixed laws, however,
cover a relatively small area of the activity of a modern state, and
the bulk of the laws remain to be discovered. The system continues
to grow.

‘The manner in which the growth of the Islamic legal system takes
place has been indicated by the fugahd’ themselves. An analysis of
their works reveals that they conceived of the Islamic legal system as

°See Noel J. Coulson, “The State and the Individual in Islamic Law," The
International and the Comparative Law Quarterly, 6 (19ST): 49-60.

12 The Doctrines of Hadd and the Spheres of Law

operating through two linked spheres. The first part of this system
is relatively fixed, while the second is “flexible,” changing with the
times, growing with the needs of the Muslim community. The fugaha’
expounded and elaborated the law laid down in the fixed part and left
the development of the flexible and ever-changing part to the ruler,
who was to develop and apply it in accordance with his own times.
It is for this reason that the fundamental qualification stipulated for
the ruler was that he be a mujtahid, a fully qualified and indepen-
dent jurist capable of interpreting and applying the principles of the
shari‘ah to all new situations. The seed grew into a young plant and
the plant into a tree with many branches bearing different kinds of
fruit. Care for roots of the tree and its trunk were the responsibility
of the ', while the tending of the branches and the leaves, that
Senge itewis rey essaeced age carer ete vece This has
already been explained in the initial chapters.

The ruler carried out this function through a policy called the
‘siydsah shariyah. This may be translated as the “administration of
justice according to the shart‘ah.” When such administration con:
formed'with the dictates of the shari'ah, it was called siydsah “ddilah
or administration according to justice. If his policy or administration
deviated from the norms of shart'ah, it was called siydsah zdlimak or
tyrannical administration.*

‘The evolutionary aspect of Islamic law has usually escaped the
attention of scholars, especially the Western scholars. The attention
of the Western scholars has generally been directed toward the origins
of Islamic law, where the effort has often been to show how much
Islamic law has borrowed from Jewish or Roman law. To achieve this,
their energies have been devoted to the construction of the history
of the sources of Islamic law, the aim being to indicate the lack of
originality, in other words the falsity, of Islamic law in particular and
of the whole religion of Islam in general. One scholar puts it this way:

"The idea that these are religions “in history” has led to an
‘emphasis on the desire to discover “what really happened,” ul-
timately, because of the underlying belief that this discovery
‘would demonstrate the ultimate truth ot falsity of the individ-
ual religion.*

“Tardbalust, Mfu'tn al-Hubkdm 1 (1, n.d.).

“Rippin Andrew, “Literaty Analysis of Qur'an, Tofvfr, and Stra," Approaches
to Islam im Religious Studies, R. Martin, ed. (Tucson, 1985).

‘Taeorres of Istamic Law 113

In short, they have not studied the legal system of Islam as a legal
system should be studied. They have never felt the need to consider
Islamic law as an evolving and growing legal system. The effort to
show the separation between theory and practice has been in the
forefront, whenever later periods of its history have been surveyed.
This is particularly true in the case of those periods when sincere

by the Muslims to bring the “flexible” part of
the law ity with the principles derived from the fixed part,
as in the case of the Ottoman Turks prior to the tanzimat reforms, or
of the period of Awrangzeb ‘Alamgir in India. Some acknowledge that
‘the laws of Sulayman ‘Alishan in Turkey (sixteenth century), which
‘were promulgated under the supervision of the Shaykh al-Islam, were
the “swiftest laws in Europe”; yet they continue to insist that these
laws were not based on the shari‘ah. The legal system established
by Awrangzeb ‘Alamgir continued to flourish for a long time and
was used by the British too for a considerable period. The major
contribution of Western writers in this area has been that they have
made Muslim scholars conscious of the field of Islamic legal history.

Is it, however, the duty of Western scholars to devote their en-
ergies and resources to the study of the Islamic legal system? Not
necessarily. That is primarily the duty of Muslim scholars, who have
generally been busy reproducing the works of the fugahd’, in vary:
ing arrangements. Their first duty, in the opinion of this writer, is
not to show the supremacy of their legal system over other systems,
but to discover the exact nature of their legal system. The present-
day Muslim scholars have failed to study the evolutionary growth
of their own legal system. The general trend has been to condemn
taglid and complain about the closing of the gate of ijtihdd. Islamic
law has never stopped growing, and the allegations of taglid and the
closing of the gate of ijtihdd, against the jurists, are founded on a
superficial understanding of the nature of this law. It was the Mus-
lims themselves, who fell victim to mental paralysis during the age of
colonization and subjugation not their jurists. In this period too the
law has continued to grow either through practice or by consolidating
itself in theory.

Now that Muslims have regained their independence, and have,
after after a period of flirtation with the West, begun a search for
their identity, it is to be hoped that things will improve. It should
be kept in mind that Islamic law is not only a stable tree patiently
waiting for its fruit to be picked, it may also be compared to a gi-
ant river that has moved very rapidly in some stages, while in oth-

14 The Doctrines of Hadd and the Spheres of Law

ers it has slowed down, spreading out into the plains, consolidating,
depositing its fertile silt, and then moving on—sometimes bursting
out again through the dams that have been constructed to block its
path, threatening to wash away all that stands in its way. It is possi-
ble that the dams blocking the path of Islamic law today may burst
again, with impredictable consequences. The consequences will be
unpredictable as Muslims are not prepared; they lack the theoretical
conviction and the know-how to handle their own law, This is not to
say that they lack the skills or are less intelligent than their prede-
cessors; what is lacking is the right attitude and the determination
to understand the nature of this law.

8.2. A legal basis for the spheres

What is the legal basis for this conceptual separation of the two
spheres? How can one be distinguished from the other? To under-
stand this we have to appreciate two things: the doctrine of hadd
and the classification of laws on the basis of rights.

The doctrine of hadd is normally associated with the law of
crimes, where it is taken to mean “fixed penalties determined to be
the right of Allah.” This is the narrower concept of hudiid. Here we
are concerned with the larger doctrine of hadd, the details of which
have been provided by al-M&wardi and others, though very briefly.
It has been indicated above that the term hadd occurs thirteen times
in the Qur'sn and none of these terms implies the fixed penalties.
‘The list is long and it will be easy to say at this stage that all the
‘ibadat, the fixed penalties classified as hadd, and most of the laws
that are prescribed in the Qur'an, as well as may of those in the
Sunnah are included in the inner sphere. This is the Jnrger doctrine
of hadd and should not be confused with the narrower concept of
fixed penalties, which is included in it. To simplify the matter, we
may say that all those issues of the law that are explicitly stated in
‘the texts (the Qur'an and the Sunnah) or are very closely related to
them fall within the ambit of the wider meaning of hadd. This wider
meaning is indicated in the Qur'an in several places. Consider the
case where the form of divorce is laid down and it is suggested that
property given to women should not be taken back upon divorce.
‘The verse ends with the warning: .

“The inner sphere or the fixed sphere, as mentioned in Chapter 2, is one around
which the flexible sphere revolves, and from which it draws its inspiration.

LAMIC LAW 115

Sele aeg6 sshc Sag 3s tags ON Ae ay

‘These are the limite (imposed by) Allah. Tranagrese them
not. For whowo tranagremeth All's limite: such are the

‘The fugahd’ devoted their energies to the identification of all
the huddd prescribed by law, and their manuals of law deal with the
larger doctrine of hadd. Those who may have some reservations about
this should closely examine the work of at least one great Muslim
jurist, Tbn Rushd, In is beck, BOM SE SeORiRi bs Recess
of the issues of figh, but mentions

texts or is closely related to it,
The doctrine of hadd works hand in hand with the concept of
‘the right of Alldh, We have already discussed the division of the
laws into primary and secondary rules. We may recall one important
classification here, which is perhaps the most important of all. This
is the classification of the primary laws, that is, the hukm taki(ff into
those laws that relate to the right of Allh and those that relate
to the right of the subject. There are two intermediary overlapping
categories as well, but we may ignore them for the time being. We
have also said that it is customary with modern writers to equate
the right of Allih with the right of the state or the right of the
community. This is a false notion. The right of Allah is independent
of the right of the state or that of the community. The right of the
state is, in fact, the right of the individuals as a whole, that is, the
collective right of the community. This has been referred to as hagg
by al-Méwardi and hagg ol-sultén by Ibn Rushd. The
‘of Allah (hagg Allah) is owed by the Muslim community to
is not owed by the individuals to the community or to the
state. This is the crucial point. The right of Allah is fixed by All&h,
‘once and for all and is not aubject to legal or judicial review, that is,
it ls outside the purview of the law. It can never be altered. Failure
to understand these distinctions is likely to lad to a misreading of
Islamic law.
All laws that are related to the right of Allah are part of the
fixed sphere of the law. These can never change and are fixed till
eternity, All laws that are not related to the right of Allah, that is,

"Qur’kn 2: 229

feslog etch tha por tha ep Gat scpicity ideo? Sy

116 The Doctrines of Hadd and the Spheres of Law

those that are the right of the individual or the right of the salfanah
and have not been expressly stated in the texts are liable to change,
In fact, they should change in each age to adapt to new conditions.
This statement needs to be qualified though: Any laws that involve
the right of the individual, but have been specifically fixed in the
Qur'an or the Sunnah belong to the fixed sphere and are to be con-
sidered as rights granted by Allah and as boundaries fixed by Him,
for example, the laws of inheritance that have been explicitly laid
down in the Qur'an. Such rights are to be considered together with
other basic and inalienable rights that have been explicitly granted
by Allah to Individuals. They may not be changed or even suspended
temporarily, whatever the emergency. They are outside the pale of

legal review.

8.3. Interaction of the spheres

‘The two spheres of the law, which we may for the sake of convenience
call the “fixed” and the “flexible” spheres, are linked to each other
through an organic relationship. They are not mutually dependent.
In fact, it is the flexible sphere that is dependent on the fixed and
unchangeable sphere, and may be said to revolve around it, chang-
ing its complexion in each age. The relationship is best described
through our example of a tree. The fixed part is firmly planted in
the ground,* while the changing part is like the branches that spread
cout and keep on changing their shape and appearance in different
times and seasons. It is these branches that require some pruning in
different periods so that their growth and the fruit that they yield
are abundant. The terms usu! or roots and furd‘ or branches fit in
with this image. An explanation required in this picture is that some
of the branches or fur’, developed by the fugahd’, that is, those
branches very close to the trunk of the tree, are also relatively fixed.
‘These, basically, are laws extended through strict analogy (giyds), as
distinguished from some wider forms of analogy that we shall take
up in the next part.

The fixed part of Islamic law performs a number of functions.
Some of these may be indicated here.

The first function is to provide the basic law on which the foun-
dations of Muslim society are laid. These laws do not explicitly

ming that the roots are pot growing all the time, which in organic life
they do.

‘Piwories OF Istamic Law uy

cover the entire range of human activity, but deal with that
core from which the rest of the law is developed. ‘The laws of
this part are governed by the doctrine of hudud. By hudud, ax
indicated earlier, we do not mean the fixed punishments pro:
vided in the Qur'an and the Sunnah, but the wider concept.
The Audid exist, in this wider meaning, as a basic minimum
right of Allah over the Muslim commusity.

‘The literal meaning of the term Audvd is limit or boundary. This
meaning describes, exactly, the second function of the fixed part
‘of the Islamic law. It lays down the limits or outer boundaries
within which the flexible part is to,be developed or evolved.
‘These boundaries are never to be crossed. In other words, it
means that prayers will always be a prescribed duty, unlawful
Intercourse will always be prohibited, ribé (usury) will never
be made lawful, inheritance laws will always assume the kame
ratios, and so on. All laws laid down as boundaries shall forever
remain unaltered and fixed. The flexible or changing law will
have to grow and develop within these boundaries, but will
never be able to affect or alter the nature of the fixed law.

© Another function of the fixed part is that it furnishes the prin-
ciples of Islamic law, The flexible part of the law jp developed
‘on the basis of these principles. These principles should not be
confused with the opinions of the jurists as found in the books
of figh. The opinions of the jurists should be taken as decisions
arrived at in particular cases and not the principles relied upon
for arriving at those decisions, The principles furnished by the
fixed part of the law should also not be confused with the rules
of interpretation laid down by the science of upd al-figh, which
are principles utilized for the derivation of the fixed law. Fi-
nally, the principles emerging from the fixed law should not be
‘confused with the rules or particular provisions of the substan-
tive or procedural law. Such provisions are rules to be followed
for a defined set of facts, while the principles are more general
in nature.* The sources for the principles of Islamic law are
the Qur'an and the Sunnah. These principles may be explicitly
stated in the sources or may be derived from them and then

"We shall explain the medning of the term “principle” intended here in the
next part in chapter 10, within the discussion of theories based upon general
principles.

ug The Doctrines of Hadd and the Spheres of Lav

unanimously accepted through consensus (ijmd’), which is a
judicial function.

# An important function of the fixed part of the law is to yield the
ultimate principles or the purposes of the Islamic law, These
are what have been called the magdsid al-shari‘ah. They are
“interests” preserved and protected by the shari‘ah. The law is
developed through a reconciliation of these competing interests.
The magdgid al-shari'ah not only include the major interests
secured by the shari'ah, but also assimilate, within them, all
the general principles of the law described above. The theory of
“interests” is discussed in great detail in the works of Muslim
Jurists like al-Ghazali and al-Shatibi, and will’be taken up in
‘the second part of this book.

Beyond the purposes, principles, and rules provided by the fixed
part of the law are the collective teachings of the Qur'én and
the Sunnah that provide the moral norms not expressly ac-
knowledged by the sources, but are derivable from the general
character of the social morality that surrounds the law. Such
moral norms may be used, according to al-Ghazali, to develop
the law, though he considers them to lie within the category of
the tahsinat,’®

Now that the domains of the Islamic law have been described, let us
turn to answer the question raised by the Federal Shariat Court, and
find yet another reason for understanding the structure of Islamic
law through the two interacting spheres.

8.4, The spheres of law and hudidd penalties

We have already indicated that the classification of laws into those
invoking the right of Allah and those related to the right of the indi-
vidual is not an idle classification. The Muslim jurists were not fond
of classification for the sake of classification, as some critics assume,
This classification makes a great difference in practice. Indeed, it is
the most important classification in the Islamic legal system. It has
tremendous explanatory power as far as the structure of the legal
system is concerned. Many important consequences flow from it. We

**The measing is provided in the discussion of al-Ghazall's theory in Chapter
12

‘Tueories oF Istamic Law 119

shall only mention a few of these with reference to the Islamic law of
crimes, The consequences of this classification for Islamic Criminal
Law are the following:

1. The penalty for an offense against the right of Allah cannot be
waived or commuted after apprehension and conviction. How.
ever, the penalty for an offense against the right of an individual
alone or against the rights of individuals, that is, the right of
the state, can be commuted. The important point to be made
here is that if the right of Allah and the right of the state (or
the right of the community as a whole) were the same thing,
the state would not be able to commute any sentence accord-
ing to the system developed by the jurists, whether awarded as
add, ta‘zir, or as siydsah. We know vers well that the state
can pardon any sentence that is not a hadd. The reason is that
sentences other than hadd are not awarded and applied as a
right of Allah,

2. Shubhah (doubt) in the right of Alléh has the effect of waiving
the penalty of hadd, while it does not have the same effect in
ta'sir, Qigds (retaliation) has been assigned an element of the
‘right of Allah as it is waived due to shubhah. This kind of doubt
is not to be confused with the benefit of a doubt that goes to
the accused in positive law, which is a doubt in the mind of
the judge as to whether the crime has been proved beyond
doubt. Islamic law has no objections to this, as proving an
offense beyond doubt is a requirement in Islamic law, Shubhah
mentioned here exists im the mind of the accused at the time of
the commission of the act on the basis of conflicting opinions
about the hukm or because of a particular set of facts, An
example of shubhat al-milk is, in the opinion of Malik, when
the offender steals (ot takes by way of stealth) the property of
the bayt al-mal (treasury) under the impression that he is part
‘owner of the property.

3. All ta’sir is the right of the individual and it is for this reason

that shubhah does not operate in it. This is the claim made
by al-Kasini, Some jurists, mostly Shafi'ites,"' have said that

+ A}-Maward is one of the first to have said this. See al-Ahkém al-Sulténiyah,
237, There are some later Hanafi jurists too who have maintained that (o'sfr may
be a right of Allah or the right of the individual. One such Hanafi jurist is Ibn

120 The Doctrines of Hadd and the Spheres of Law

ta‘zir can also be a right of Allah. This is an inconsistent state-
ment, for ta'zir as a right of Allah would prevent pardon ( ‘afw),
which is an acknowledged attribute of ta'zir.

4. The evidence of women is not admissible in the right of Allah,
that is, in hudid, while it is in the case of ta‘zir, which is

\ the right of the individual, but the niséb of one man and two
women has to be maintained, as in the case of other rights of

~ the individual. No such restriction is applicable to the right
;*O sof the state and a single woman can furnish evidence that is
admissible in cases falling under siydsah, just as circumstantial

* evidence is admissible whenever thehagg al-saltanah is in issue.

‘There are other manifestations of this distinction, but these will suf-
fice for the present purposes.

The question that arises at this stage is, d
choose to divide punishments into hadd, ta’ Is it
only because the hadd punishments are fixed in and Sun-
nah? According to modern Muslim writers this appears to be the
‘only reason, because of which they consider punishments to be di-
vided into two categories only: hadd and ta‘sfr. There are, however,
some problems with this, mostly of analytical consistency. The issue,
as indicated earlier, was discussed in a case appearing before the Fed-
oral Shariat Court of Pakistan, The major question is: Why did the
fuqaha’ choose only a few penalties out of the several awarded by the
Prophet and classified them as hadd, leaving other penalties out? The
answer to this question is complex, but not beyond comprehension.
It may be broken up into the following points:

1, The first point is that the majority of the jurists considered
those penalties as hadd that are mentioned in the Qur'an, The
fe for drinking wine is not mentioned in the Qur’an, bet

he

e act of drinking wine has been condemned as an offense,
‘The penalty is found in the Sunnah, where it is different in
different traditions, but the jurists selected a penalty according
to their different methods of preferring traditions, If a difference
of opinion has arisen over the extent of the penalty, it is not
very important, The significant point is that the penalty has

“Abidin, He does, however, realize Ube inconsistency and is forced to say that
when ta‘siris a right of Allah, it cannot be commuted, that is, it will not accept
“afw (pardon). See Hashiyat Ibn ‘Abidin, iti, 192.

or Istamic Law 121
been provided by the Sunnah, which is an authoritative source
of law.

2, The second point, and this is most important, is that all the

trustworthy witnesses for the offense of unlawful sexual inter-
course and the Sunnah prescribes two for other offenses. In
addition, the Sunnah lays down different conditions for some
of these offenses, which must be met before punishments can be
meted out. These are, for example, the conditions of hirz and
nisab for the offense of sarigah (theft). The hikmah (wisdom)
in these punishments appears to be that the primary purpose
is deterrence, even if they are applied rarely due to stringent
conditions of proof. If all other punishments. ware also to be
governed by the same-rales, that is, if every punishment were

che/ecunans We vasa eld hace ha ba entail Sows tad

ontire criminal law. As each crime would relate to the right of
Allah, forgiveness (‘afw) and commuting of sentences, as de-
scribed earlier, would also not be possible.

3. If, on the other hand, all the huddd penalties were called ta'zir,
the first effect would be that the evidence of women would.
be included with two women replacing one man. The second
difference would be that forgiveness of the sentences now called
huddd would be possible. The third effect would be that the
penalties would be at the discretion of the judge or ruler, to be
varied and changed as he deemed fit, Further, these penalties
would be declared as the right of the individual as in the case
of ta‘zir and would no longer be associated with the concept
of limits or bounds of Allah. All this would be against ¢!
teachings of the Qur'in and the Sunnah of the Prophet, besid
creating many logical inconsistencies.

‘The fugaha’, then, with their superior knowledge of the Qur'an
and the Sunnah realized that the the sources of shari‘ah required
some penalties to be maintained as the hudid of Allah, limits or
boundaries never to be crossed whatever the age or civilization and
whatever the conditions of life. These were the rights of Allah. They

ine

122 The Doctrines of Hadd and the Spheres of Law

these from wrongs associated with the rights of the indi-
vidual. This area was called ta'zir.

‘This should suffice to answer the question raised by the Fed-
eral Shariat Court. Another problem arises, however, with réspect
to ta‘sir, We have been maintaining that t! f
law, one fixed and the other flexible, but the law of pears
to present three: hadd, ta‘zir, and siydsah, This apparent difference
needs to be resolved.

‘The fugaha” rarely discuss ta‘sir in detail, with the result that
it is extremely difficult to determine the exact scope of ta‘sfr, Some
research has been done on this by scholars, but there is need to be
more analytical and to avoid logical inconsistencies. This is a problem
to be discussed under the law of crimes, yet some explanation appears
to be necessary even at this stage.

‘We have indicated that the third area is that of siydsah, which is
the “flexible” and changing part of the law depending on the ijtihdd
of the ruler. We have also said that ta'sir relates to the right of

where the standards for evidence require two male

_ witnesses or one male witness and two females. Sipdsah, on the other

hand, relates to the right of the state (salfanah) or to the rights
of the individuals collectively where the standards of evidence are
more relaxed insofar as it depends on the ruler to determine them
in accordance with the requirements of his times. Now some modern
scholars conclude that fa‘zir can be a right of Allah and a right of
the individual, and by right of Allah they mean the right of the state,
because they equate the two. They base their opinion on the views of
some fugahd’."? It is, however, felt that ta‘rir should be designated
as the right of the individual. This is the practice of the Hanafites
‘and appears to be based on analytical consistency, An example will
illustrate why.

If a man steals from the bayt al-mdl there is no hadd penalty
for him. The reason is based on shubhat al-milk, The bayt al-mdl
is the common property of the Muslims and for purposes of hadd
the offender is considered to have committed a theft from his own
property that is jointly owned with the Muslims. Hadd is waived
due to the doubt, actual or legal, in the mind of the offender arising
from joint ownership of the property, This person, however, is not
allowed to go scot free. He is awarded punishment under the rights
of the state or the rights of the individuals collectively, as shubhat

"See, e.g, abMawardi, al-Ahkdm al-Sulténtyah, 237,

‘Tueonies ov Istamic Law 123

al-milk is not ope-ative against these rights, but it is effective in the
waiver of punishment in the right of Allah. If te‘sir is declared as a
Fight of All&h, this particular offender will go scot free on the basis
of the same shubhah, as the right of Allah is to be waived in such a
case, which would defeat the purposes of the law and those of social
control. To state it differently, if both hadd and ta‘rir are considered
the right of Allah, the doubt or shubhah related to ownership would
operate in both,

There is another difficulty involved with the concept of ta‘sir.
In the case of murder or gatl ‘amd the penalty is gipds, but only
when the offense is proved through the testimony of two male ‘ad!
witnesses. If the offense is not proved in a certain case, but there
is sufficient circumstantial evidence to convict the offender, will the
state try this person under ta‘rir or under siydsah? Under ta‘str, the
system of the fugahd’ requires two witnesses again, with one male
being replaced with two females, that is, almost the same kind of
testimony, In siydach the standards of testimony are lowered and the
case can be proved more easily.

‘The only solution appears to be to merge the two areas of ta'zir
and siydsah with the standards of proof and modes of procedure being
determined by the imdm. This the Muslims appear to have done
already, without taking into account the nigdb for testimony. The
esiaee ares pane metas bear at SAM ses where

call tavbsgiehhel sal Ws Conmeenencas: Ta ‘hls ease Gha ight
belongs to the state or to the Muslim community. This will avoid
logical inconsistencies and help build upon the aystem erected by the

All this leads us to the “nustusion that there are two spheres
of Islamic law (and should be iwi-in the law of crimes also), one
fixed, existing as the right of Allsh, while the other is flexible and
changing. The concept of hudiid includes all those things that al-
Mawardi lista, ranging from ‘ibédat to penalties, inheritance to zakat,
and so on. It includes some of the institutions that relate to the rights
of individuals and have been determined in the Qur'an and have also
been designated as hudiid. The reason is that these relate to rights
explicitly granted by Allah. Thus marriage will always be a required

'"'Thas, for example, the Hudéd Ordinances applied is Pakistan do sot require
the testimody of two male witnesses. Ax offense classified as to xf can be proved
through the testimony of one witneas, even when the witness is « female.

124 The Doctrines of Hadd and the Spheres of Law

institution, which cannot be replaced by common law marriages and
child-care, Inheritance will always be distributed according to the
Quranic injunctions, and riba will always remain prohibited. There
ls very little or no scope of further ijtihdd in this area. ‘The jurists
devoted fourteen centuries to the development of the fixed part of
the law and have developed it to its limits. They have always left the
flexible or changing area that relates to the rights of the individuals
as 8 community for the imim to develop and which is waiting today
to be developed in accordance with the purposes of Islamic law and
its general principles.

8,5, Advantages of visualizing two spheres

Ik is possible that some readers may find it difficult to accept the
idea of two spheres of law interacting with each other, because this
has not been explicitly stated anywhere in the books of the jurists.
‘The reply to this objection, raised, is that this is not a physical
division of the law into t is ‘as conceptual tool,

analyzing | of Islamic law. Visualizing,
‘as operating in two interlinked spheres presents a number of
advantages. Some of these may be the following:

1, It helps us rontanaad. ria bests confined their jurintic
activity to ‘not extend it to others, For
example, we know that certain Jegal i existed from
very early times. These, among others, were the mazdlim courts
and the institution of hishah. The Muslim jarista almost never
‘mention these institutions in their law books, not even to de-
clare them as legal or illegal according to the shari'ah. It was
‘al-Mawardi, followed by Ibn Khaldin, who mentioned these in-
sation a mene Sbal la Js hank ah AI eb buteatveh, ry

w nly afer ile that aber: jr i i

wo ihs, te Apebahegrmie ett ir, COR
it is done very briefly. The conclusion from all this is obvious:
‘the fugaha’ developed the area of the law that was within their
domain to its limits and left the remaining for the itihad of
the ruler (imérn).

2. It follows from the above that the jurists never really closed the
door of iptihad. The area left for the ruler to develop was always

‘Tueontes oF IsLamic Law 125

wide open and it still is. The rulers did develop some insti-
tutions, but they apparently never established them on sound
footings, or at least in a manner that these institutions and laws
could grow with each succeeding generation without depend-
ing upon individuals. It also appears that the personality of the
ruler has always been deemed mor important than sound in-
stitutions. This has its remnants in Muslim states even today.
It is, therefore, possible that as gove:nments changed the insti-
tutions collapsed with them. A sincere effort appears to have
been made during the Ottoman times around the sixteenth cen-
tury. That, however, was cut short by the Tangimdt reforms.
In other regions like India, the efforts cf rulers like Awrangzeb
‘Alamgir were swept away by Western colonization. Are we,
then, on firm ground when we blame the jurists for taglid and
stagnation when they are not at fault and were not responsible
for establishing those Institutions and laws that we need today?

‘The idea of two spheres sets aside the frivolous doctrine of
Pon oaaageomdes . After all what criteria
do the Western writers use for claiming that the laws made by

the rulers in different ages were un-Islamic or did not conform
with the general principles of the sharf‘ah as applied in different
ages.

4, The conceptual division into two spheres helps us realize that
it is not proper to choose opinions from the fixed part and
‘try to plant them in the area that is not fixed. This has been
attempted by some modern scholars and lawyers in the mod-
ern age through a process known as takhyir, that is, choosing
opinions from one jurist or the other. The process known as
talfig or the fabrication of an opinion by using bits and pieces
from different rulings is equally futile. The only way the law in
the flexible sphere can be developed is through reasoning from
general principles arising from the fixed part of the law.

. It also becomes obvious that s binding upon us is the
fixed part of the law, Nothing is binding upon us from the flex-
ible sphere that changes with the times, unless we consciously
follow a system of its. If the rulers in the earlier ages
chose to establish mazdlim courts, it is not binding upon us to
do the same, We can possibly establish better and more effec-
tive institutions today, as long as the underlying principles are

bad

s

126 The Doctrines of Hadi and the Spheres of Law

Islamic. On the other hand, there are areas where strict bound-
aries are not visible, yet the jurists did considerable work on
them, because they were more it.terested in the operation and
adoption of certain essential geseral principles, Take the case
of the law of sales. Many modern writers try to build up an
entire theory of contracts from the work of the fugahd’, What
the fugaha’ did was to apply some fundamental principles that
govern commercial transactions to the transactions that existed
during their times. These, until a few centuries ago, were trans-
actions that centered around a ¢mall market-place, a bazaar if

"you like, or around traders leaving on long journeys with car-
avans. Today transactions have changed, market-places have
changed, and the world has become one big market. What is
basically relevant in this area are general principles used by the
fugaha’. These principles are clearly stated in the Qur'an and
the Sunnah. This is not to say that some of the rulings of the
earlier jurists in this area will not be relevant, but on the whole
these decisions should be used to understand the operation of
general principles and not always followed literally.

6, The idea of the two conceptual spheres will help the Muslim
minorities living in secular or non-Muslim countries to know
that it is the fixed part of the law that they have to follow,
and it is from this that they have to draw their inspiration.
‘Their leaders and scholars may guide them according to the
established schools of law that these individuals follow.

7. Finally, the two spheres tell us that our ijtihdd today is to be
directed more toward the flexible sphere rather than the fixed
_ sphere. The fixed sphere has been developed to its limits and a
/ ich treasure of opinions exists within the established schools
Occasional new cases may arise in this area too, but these can
be settled with ease in accordance with the precedents left by
“the fugaha’, In the flexible sphere Muslim states should
) valid and acceptable methods of interpretation that the fugaha'
\’! have laid down for them, methody itable for the
\ growth of a living and vibrant law. This will be discussed in
some detail at the end of the book, after the major theories of
interpretation have been examined in the second part of this
book,

{est

Part II

Theories of Interpretation

Chapter 9

Common Features of
Interpretation

‘The general view currently prevailing among Muslim scholars, as
well as Western writers, is that legal theory in Islamic law, which ix
represented by the discipline af wail ol-figh, did not exist before al

Shafi's, It is true that al-ShafiT was the first jurist to systematically
record in his book al-Risdlah the general rules of interpretation. In
addition to this, he produced a number of works in which he stated
his juristic position in great detail as compared to the founders of the
earlier schools, and tried to show the soundness of his method. The
systematic recording of his principles was indeed a significant event,
This, however, does not mean that the schools or jurists before him
lacked @ methodology that they could use to interpret the texts ot
sources of the law.

The earlier jurists, whether they belonged to a school or were
independent, did have a clear methodology for the interpretation of
texts. No major attempt, however, has been made in modern times
to understand their systems.’ The focus has been on al-Shafi'T and
‘on the discipline of ustl al-figh that was developed and refined after
him.

‘The reason for the importance given to al-Shafi'i's work is that
later Hanafi and Maliki jurists expressed the positions of their schools
im the format adopted by al-Shafi'i or his school, and this gave the
subject of ugal a uniform appearance. Their views are, therefore,

‘As far as we know, the only systematic effort has been made by Dr. Zafar
Ishaq Ansari in his doctoral dissertation, The Early Develpment of Figh en Xafah,
at McGill University, Montreal, 1966

130 Common Features of Interpretation

considered as deviations from, or variations of, the views expressed
by al-Shafitl, (his has led to the study of the discipline of upd! al-
figh as @ uniform theory. As a consequence, we notice that when
modern scholars describe an issue within ugdl they tend to give the
opinion of one school and the opposing view of the majority (jumhir)
in comparison. This kind of comparative study may be helpful in
understanding that particular issue,? but it conceals the views of the
schools as a whole.

Another reason for the merger of views in books on uydl is that
the earlier jurists, especially those of the Hanafi school, were accused
of employing their personal opinion or ra’y as well as istihsdn in the
interpretation of sources, Istihedn was condemned by al-Shafi'T as
illegitimate. This appears to have forced the later Hanafi jurists to
express their principles of interpretation in the format and fashion
employed by al-Sh&fi'T when their predecessors had not done so.

‘The result of all this is that the concept of works
of independent jurists as separate theories has not . The
‘maximum that one finds is the listing of principles of the founder of
‘a. school in books on legal history. Today, there is no work available
‘that analyzes the views of each school as a separate and internally
consistent theory of interpretation. One reason for the lack of such
‘a work could be that the merger of different views, in many earlier
works as well as in most of the modern, makes the extraction of the
views of each school in the form of independent theories a formidable
task, Further, any attempt to explain the theories separately must
take into account the principles of interpretation that are relevant,
the development of the law, the history of usii, and Islamic legal
history in general through which broad trends can be identified. The
situation becomes increasingly complex when the purpose is to ren-
der an explanation of the theories that would be useful for the general
reader who is not acquainted with the details of these areas of study.
One does not know, therefore, where to start. Is one to begin with de-
velopments in ustil al-figh or with those in the law? Should the broad
features of the theories be outlined first or the details? The situa-
tion is further aggravated if the general view or approach adopted is
somewhat different from the generally prevailing views.

In any case, the method adopted here is to first state, however
briefly, some common details of the rules of interpretation. It is ex-
pected to give the reader a general idea about the operation of the

* This too is doubtfal, in the opinion of this writer,

‘Tuzonies oF Istamic Law 131

system of interpretation in Islamic law. This will be followed, in con-
secutive chapters, by a description of the broad features of the main
theories. Details from legal history will be woven into the description
of the broad features. The next chapter will, therefore, deal with
the broad features of theories that employed general principles. The
chapter following it will describe the strategy of the strict theories of
interpretation. This will be followed by a description of the theory
formulated by Imam al-Ghazall, a theory that is constructed upon
the purposes of the law. The purposes of the law also merit separate
treatment. A chapter will, therefore, be devoted to their analysis and
refinement. Finally, an attempt will be made to identify methods in
traditional theories that are likely to be more useful for interpreta-
tion in the present age, not only for the scholars of Islamic law, but
for judges engaged in the adjudication of cases in accordance with
Islamic law in certain countries. This will be undertaken in part three
of the book:

9.1, Interpretation in general

Understanding different theories of interpretation is relatively easy
if common and general features of interpretation in Islamic law are
‘explained first. This may also help the reader who has no prior know!-
edge of Islamic law or of ugil al-figh, a discipline that furnishes the
methodology for the derivation of laws from their sources.

Each book on Islamic legal theory contains the statement that
there are four sources of Islamic law. By this the authors mean that
there are four sources that are unanimously accepted by all the Sunny
schools, as distinguished from Shi't legal theory and the views of
the now extinct Zahiri school. Agreement over these four sources,
however, does not justify the designation of this acceptance as a
“common theory,” also known as the “classical theory” in Western
literature on Islamic law. There are other sources of law, but these
are accepted by some schools and not by others or they are assigned
a different binding strength. This statement about four sources was
first made by the illustrious jurist Imam al-Shaf's, the founder of a
school, and in some ways the pioneer of the science of ugdi al-figh.
In a restricted sense, this statement is true, as will be obvious later,
because several principles sometimes considered independent can be
accommodated within a wider form of giyds or analogy, the fourth
source of Islamic law.

132 Common Features of Interpretation

‘The first source of Islamic law is the Qur'an, which is consid-
ered by Muslims to be revelation, that is, the word of Allah as re
vealed to Muhammad. The second source is the Sunnah (practice)?
of the Prophet as contained in hadith literature, which is its written
record." These two sources are considered the primary sources. The
third source is ima‘ (consensus of opinion), with its varying inter-
pretations whether it is the consensus of opinion of the Companions
of the Prophet alone, consensus of the entire community, or consen-
sus of the jurists in each age on a rule of law, The last meaning,
that is, agreement of jurists on a rule of law, was accepted by all
the schools, even the Shafi't school after al-Shafi, For al-Shafi'T him-
self, the principle of ijma‘ was not a very useful principle, because
he believed that a consensus of opinion of all jurists was difficult to
ascertain, The fourth source is qiyés. All this is well known.

It is also known, but seldom emphasized, that the Sunni schools
accept other sources of law, though agreement over these is not unan-
imous. Each school accepts some of these sources, but rejects oth-
ers, These sources are: opinion of a Companion, istihsdn, istishab,
and istiglah. Custom (‘urf) is also accepted as a source Insofar as it
means the custom prevailing during the period of the Prophet, which
lu used to assign meanings to terms in the texts, that is, it is used
to discover the intention of the Lawgiver. This is not to be confused
with customs that may be prevailing in other ages and in tertitorios
other than Arabia of the Prophet's time.* “sources
go a long way in leading each school to different opinions combi-
nation with this, disagreement over rules of interpretation employed
weed ‘is what gives rise to separate and distinct theories of

‘ws will be explained in what follows.

Despite the existence of these separate sources, al-Shasi't insisted
that there are four sources. He also equated ijtihdd, or iaterpretation,
with the principle of giyds. Al-Shifi't's intention could have been to
testrict the rale of ijtihdd to the principle of giyds alone. Later jurists
probably found this to be too restrictive and so tried to accommodate
all other methods or sources, like istthsdn, istishdb, and istislah within

ceopding to the Shafitite theory, this too ix a form of revelation (wahy), The
Qur'an is revelation in both word and meaning, while the Sunnahis revelation in
meaning alone
“One hadith may contain more than one sunah.
*Such customs would be treated like all other new cases awaiting decision, and
judgment would be readezed about their validity in the light of the shartah, For
‘4 detailed exposition about ‘wrf see abShatibt, al-Muwdfagat, iv, section on ‘urf.

Tueonies oF Istamic Law 133

the fold of giyds. An examination of this principle later is expected
to show how far this is true. The only principle that could not
be included within giyds was the opinion of a Companion, but the
‘Shafi'T school does not consider this source to be binding. What this
means is that al-Shafi'i considered the opinion of a Companion to
be equivalent to the exercise of giyds by the Companion, therefore,
when such giyds conflicted with a khabar wahid (a tradition narrated
by one or two persons in the first three generations, even if it became
widely known later) it was to be rejected. The Hanafites, on the other
hand, consider jt to be a precedent (like a ruling by a higher court,
which is ususally binding on lower courts) established on the basis
of the superior knowledge of the Companion, who knew what texts
had been abrogated and what principles preferred over others. This
makes it authoritative and binding for the Hanafi jurists.” Further,
some schools rejected istihsan.

For the purposes of the present discussion, however, the views of
all schools will be considered collectively where necessary, but again
this does not imply that there is a common legal theory in Islamic
Jaw. The general idea of “sources of law” needs to be qualified too.
‘The Que'én and the Sunnah are the two primary sources. The remain-
Ing sources are actually principles that represent different methodolo-
gies used by jurists to derive the law from the two primary sources.
‘These principles are considered sources so as to indicate whether a
rule derived through them will be binding on others, By others here,
do we mean laymen or qualified jurists? A rule derived by one jurist
through giyds will not be binding on another jurist, who is under
an obligation to follow his own ijtihdd. For the layman, the mean-
ing of source is not important, for he is not required to inquire into
the sources; his source is the jurist. The meaning of layman includes
those judges who may not be qualified mujtahids.* Qiyds, therefore,
is a principle of interpretation that is valid for those who accept it
as such, It does not have the same force as the Sunnah, for example,
the texts of which are binding for all jurists.

“Part of the discussion about gryés will be undertaken in this chapter and part
in Chapter 12.
"See al-Dabdst, Ta'str al-Nasar (Cairo, nd.) 55, lor the difference between the
Hanafites and the Shafi‘ites. He has expressed this issue in the form of a principle.
Siler ag loge haa eed a rr jor apace ep Open
recognising that there may theoretically be individual judges among them who
muytaheds

™ Common Features of Interpretation

9.1.1. The law is always the hukm of Allah

‘The fundamental idea that haunts Islamic legal theory is that a rule
of law, when expressed by a qualified jurist (mujtahid), is not to be
taken merely as his opinion, but as the Jah, 0 hukm that is
sacred and is to be obeyed, even though it discovered by the
jurist.” Stated another way, the jurist who derives the law from the
texts bears a grave responsibility, for he is not issuing opinions as it
pleases his fancy, but is deriving rules that will be considered the law
of Allah. This point cannot be overstated. Because of this, no Muslim
jurist would like to be accused of framing the law jn accordance with

5. his “personal opinion (ra'y)."" The jurist does not make this law;

;, he discovers it from the authoritative sources of the law. Thus, any

‘ |) tampering with the law by an unqualified person is deemed a serious

_ 4 ¢ matter. Most discussions in the works of jurists revolve around this

point, and the validity of a source of law depends on the issue whether,

the ahkém of Allah can be proved through such a source. 4

The methodology that ensures that valid sources are used, ini

3 equally valid ways, to discover the law is called upil ab-figh, and

(\ this methodology varies from school to school, except in the case of

ob acceptance of the four sources, as stated earlier, The term wgill (lit.

\J- roots) may be used to refer to a number of things, but is generally
understood to mean “sources.” however, term
impr “a body of pinyin?” which SS tampa ties
‘The use of the word “source” in the Western sense of the term fails to
do justice to this important point. These principles are formulated
im the form of general propositions whose major premiss serves as
the principle. Such a principle is sometimes referred to as a qd‘idah
ugiltyah. For example, a proposition may be stated as follows:

_ The ahkém of Allah are to be found in the Qur'an. The Qur'an
in m source of law. Thus, each time a butm is found in the
‘Qur'an, it is proved as the bum of Allah."

‘The principle that emerges, and which is usually stated, is that the
Qur'én is a source of law. The emphasis for the jurist, however, is

"See al Shaft, al-ftsdlah, 39, 476,

"The allegation made by the Shaf'iter that the Hanafi jurists used ra'y to
frame laws is to be understood more is terms of school bias rather than ip terms
of deriating methodology.

"Sade abShari'ah, ol-Towdih, i, 45.

‘Teortes oF IsLamic LAW 135

always on the last sentence; namely, each time a hukm is found in the
Qur'an it is proved as the hukm of Allah. The same is the case with
the Sunnah as well as ijmd’ when it is said that they are sources of
law, the emphasis is identical. While there is no hesitation in accept-
ing the Sunnah as a source of law in this meaning,"? the case of ijma‘
is somewhat different. The jurists, therefore, spend considerable time
in proving through the texts of the Qur’an and the Sunnah that ijma*
is a valid source of law, and any hukm proved through it should be
accorded the status of the hukm of Allsh. The situation in the case
of giyds becomes even more difficult, especially when there has been
some hesitation in accepting it, with the ZahirT school rejecting ite
validity completely. The remaining schools accepted giyds as a valid
source, after giving detailed arguments from the texts about its valid-
ity, Thus, when the jurist maintains that analogy (giyds) is a source
of law, the emphasis will always be on the fact that “each time anal-
ogy is successfully used to discover the law (from the Qur’én and
the Sunnah) a hukm of Allah is discovered or proved." This is so
as qiyds is merely a method of discovering a law laid down in the
Qur'én and the Sunnah, and the law is actually being proved from
the two primary sources. It is in this sense that the four sources are
designated as definitive (gat't), that is, if a hukm is proved through

these sources it will certainly be accepted as the hukm of Allah.
‘The jurist, in this way, arrives at four fundamental principles of
interpretation related to the four acceptable sources of the law. These
are also termed as adillah ijmaliyah, that is, comprehensive sources
that contain within them a large number of detailed individual or
evidences, the adillah tafyitiyah. In addition to this, each
formulates principles for the additional sources that jt accepts
and acts upon. The emphasis is the same as for the first foor sources
with respect to the resulting rule being the hukm of Allsh. This
body of rules or principles is known as upill al-figh. These, however,
only part of hole. A lagge number of such are
of literal ‘are-also. part of

peepee pr

Because it is considered revelation in meaning.

“Sade ab-Shart'ah, of Tawgih, ii, 45.

M4l-Gharsls, ob Mustas/a, i, 279. He states that giyds, os the whole, is « defini-
tive (gat't) principle.

136 Common Features of Interpretation

9.1.2. The hukm of Allah and literal methods

The primary sources, that is, the Qur'an and the Sunnah, consid-
cred collectively, convey the ahkdm of Allah through three channels:
words, acts, and approvals.'® These channels contain commands or
proscriptions. The text demanding the commission of an act uses el-
ther the form of a command (arr) or the form of a report implying
‘a command. Similarly, the authority demanding omission of an act
employs the form of a proscription (nahy), or the form of a report
implying proscription, If words occur in the sources in these forms,
\s the demand for the commission of an act to be interpreted as an
obligation (wujtib) of a recommendation (nadd)? This, in the main,
depends on the principle followed by the jurist or by his achool, One
school may say that “the command initially implies obligation, unless
another evidence indicates otherwise.” Another jurist may uphold
‘the principle that it initially indicates a recommendation, or even
permissibility, unless another evidence converts it to an obligation.

‘The variation in of on. this rule depends on the way the jurist
‘believer that 1 ti ofthe Lawpiver will be ascertained,

Similar tules are-formulated for proscriptions,

The kinds of words through which the ahkdm are related to acts or
entities are two: general (‘émm) and particular (thdgs).'? These are
further classified into four types: the general word when applied to all
ts categories, the particular word applied to its single category; the
general word when its application is particular, and the particular
word when its intended implication is general.!® Included in these
is the use of the higher order meaning to denote the lower order
meaning, and the employment of the lower order meaning to indicate
the higher order meaning, as well as the indication of equivalent
meanings. In other words, the general word sometimes acts like itself
and sometimes like the particular word. The same is true of the
particular word; that is, it may act like itself or it may act like the
general word. The examples that follow attempt to explain these
intricate concepts.'*

For instance, in the verse of zakah, “Take alms of their wealth,

"Pon Rushd, Biddyat al-Muglahid, i, 3
“*AbSarkhat, Usil, i, section ox amr.
‘"tbn Rushd, Biddyot al-Afujtahid, i, 3.
MALShAM', ol-flindlah, 8.79,

‘These meanings will become clearer when we later attempt to understand the
meaning of grya

Tueortes oF Istamic Law 137

wherewith thou mayst purify them and mayst make them grow,”2?
the term “wealth” is used as a general word without any restriction,
‘The meaning it conveys is that zakah is to be levied on all kinds
of wealth, We know, however, from other provisions of the shari’ah,
that zakdh is levied on certain kinds of wealth alone.”! The word
“wealth” will, therefore, be read to mean certain kinds of wealth and
not all kinds without restriction. The general word in this example
is meant to convey a particular or a restricted meaning, It is obvious
‘that in this case the restricted implication of the word “wealth” is
dictated by other provisions of the law.??

The example of a particular word having a general intent is ev-
Ident in the verse, “Say not ‘Fie’ unto them nor repulse them, but
speak to them a gracious word."23 The word “fie” here has a particu-
lar implication, but we know that if merely saying “fie” to parents ts
prohibited, all other aggressive and rude behavior must also be pro-
hibited. The word “fie” is particular, but it has a general implication.
It is also a case of the indication of a higher order meaning through
the lower, as the prohibition includes beating, abuse, and whatever
in more grievous." The other cases of general and particular words
should be obvious.

The of interpretation related to these words may vary
within Fos example, the Hanafi rule is that “a general word
“passes the hukm of Allah contained within it to all its categories
with a certainty, unless restricted by another evidence” that is, ini-
tially it is definitive (gat's).2® The Shafi'i rule is that it is probable
from the beginning, that is, we cannot be certain that the hukm has
been passed for application to all the categories. There is also the
Hanafi rule that the general implication is lost due to equivocality
(ishtirak).2* Such differences again lead to a difference in the derived

opinion.

*Qur'ka 9 ; 103

ALSANT, of-Risdlah, 176, 187,

Ibid. 187-196, 196.

™Qur'kh 17: 23

*Tbn Rushd, Biddyat ol-Mujtahid, i, 2.

ALSarkhsi, Upal ol-Sorakhe, i, 130; Sadr al-ShatTah, ol-Tow dip i, 79.
* AL-Sarakhst, Usdl al-Sarakhai, i, section on “mm and Mhiyp.

138 Common Features of Interpretation

From another aspect the entities or acts to which the hukm is re-
lated may be indicated by it through a word with a single meaning,?”
‘This is known as nagg (explicit). There is no dispute about the obli-
gation of acting in compliance with such a hukm.** It may also be in-
dicated through a word having more than one meaning, and is of two
types. The word may indicate an equal disposition toward different
meanings. This is known as mujmal (having equal probabilities).
There is no dispute that it does not obligate a hukm, as long as it is
maintained in this form, Further, it may be inclined toward some of
these meanings more than it is toward the others. In such a case, it is
known, with reference to such indicated meanings, as :éhir (manifest,
apparent), and with reference to the other (probable) meanings as
muhtamal (probable). If such a word is used in an unqualified sense
it is to be applied to its apparent meaning unless another evidence
indicates its application to one of its other probable meanings.”

‘The obscure of un-detalled word needs elaboration (baydn), which
is usually available through the Sunnah. This may lead to a difference
of opinion, because the jurists may employ different evidences for the
explanation, Some other reasons for a difference of opinion may be
due to equivocality of words (ishtirak), or the equivocality because
of the use of the definite article “al” accompanying the genus of an
entity, whether the whole Is implied or a part, or because of the
‘equivocality of the words used for commands and proscriptions.2?
‘Yet another reason could arise from what is known as (dalif al-khitab)
of the indirect indication of the communication, especially when the
Jurist tries to understand from the obligation of the hukm for a thing,
the negation of things besides it, and from the negation of a thing
the obligation of all things besides it. For example, when the jurist
tries to conclude from the words of the Prophet, “In the sd'imah
(freely pasturing animals) out of cattle there is zakdh,” that there is

"tba Rushd,

Ibid

"Ibid, ; ALGhassli, al Mustag/a, i, 345.

thn Rushd, Bidayat al-Mujtahid, i, 3. The division of words into nage, muymal,
sahir, and mubtamal is in conformity with the system of the Mutakallimdn. The
division is slightly different is the system of the Hanafites, with some practical
consequences. For a modern, but good analysis of these differences see Mubjammad
Adib Salih, Tafatr ol-Nupiy (Baghdad, n.d.).

*NIba Rashd, Bidayst ab Mujtahid, i, 3

“Ibid.

Ibid. In technical terms, it is called mafhm al-mubhalafah.

fidayot al- Mustahed, |, 3

Tuzories oF Istamic Law 139

no zakah in cattle other than the sé'imah. This is the method used
by the majority.

‘The classification and categories of words described above con:
form with the methodology of the majority. The Hanafi school has its
own terminology for describing certain categories of words, and they
alee have somewhat dierent, methods Soe antendiog the encaningn of
the text. These are what are called the dalalat.*

‘The principles stated above, that is, those related to the four
unanimously accepted sources, the opinion of the Companion, the
implications of the command (mr) or proscription (nahy), the defini-
tive or probable meaning of the general word, the meanings implied
through nags, 2éhir, or mujmal words at other classifications of words,
ire. yonntrcr 2. pty ner mee eer oRpEA Tele
school, tioned here are disagreements over the principle of
{jma’, about the doctrine of abrogation (naskh), the position taken
with respect to the khabar wahid (the individual narration), and the
different views about preferring one evidence over another in case of
conflict (tarjih). What sources are accepted by a school, and what
is the nature or form of principles adopted, depends on the founder
of the school (or what may have been attributed to him by later
jurists), The other jurists within this school are not authorized to
change these rules. This is why the founder is known as a mujtahid
muflag, or the absolute mujtehid, who is not restricted in his choice of
these principles. It is to be assumed that the set of principles adopted
by a school contains principles that are compatible with each other,
‘and ensure a consistent development of the law. The set of pria-
ciples or individual principles of one school may not exhibit such
compatibility with those of another school. Moving between schools
is, therefore, not appreciated insofar as it amounts to following a law
that is not internally consistent.”

See, e.g. AbSarakhst, Upst ol-Sarakhet, i, ection on delalat, Sadr a-Shart ah,
Tat, i, 241,
**This in also related to the iamwe whether cach mujtahad is right even when

the insue differ. The Hanafi maintain that only ome jurint
iat Najaym statex “If one asks us about our
school rival school, it is necessary for us to say that our school’s opimion

sangeet alight
‘wrong with s chance that it could be right." The Nujaym, ol-Ashbah wa
al-Naza'ir (BayrSt, 1980) 381.

140 Common Features of Interpretation

9.1.3. Qiyas and the hukm of Allah

All the above rules apply when the case under examination falls
within the ambit of the text or its meaning extended through lit-
oral implication. When the texts do not cover a case, expressly of
by implication, the nrethod used is analogy (qiyas). Qiyds is the as-
signing of the hukm for a thing to another thing, about which the
law is silent, due to its resemblance to the thing for which the law
has obligated the hukm or due to a common underlying cause ( ‘llah)
between them. It is for this reason that legal analogy is of twa typos:
giyas al-shabah and qiyds al-‘illah™ The easiest way to understand
the analogy used by the jurists is to compare it with the particular
word implying a general meaning. The difference is that analogy can
be undertaken only in the case of a particular word that implies just
its single category, The other similar cases are then joined with it,

yet implied, category is not analogy, but falls within the connotation
of the word (dalélat al-lafs). These two kinds of extensions of the
Aukra to the unstated entity are very close as in both there is a join-
ing of the explicit and the implicit cases.°” According to al-Shafi'i,
this too is analogy, and he gives it the name of giyds al-ma‘nd.™
‘This may be explained through examples. In an example above, a
verse of the Qur'an prohibits saying “fie” to parents. This is a specific
caye (khags). However, this specific case implies other more grievous
cases, like the person hurling abuses at his parents or one abusing
them physically. The lower-order meaning here yields other higher-
order meanings and extends the prohibition to them. This literal
method is called giyds al-ma'nd by al-Shafi'l and his school, because
we extend the rule from one specific case to one or more specific
cases implied by the text, The texts may use a specific (khdss) word
in which neither higher-order meanings nor lower-order meanings are
implied, and the only way the hukm can be extended is through giyas
al-"illah, Take the case of the word khamr (wine). If the word kharnr is
treated as a generic term covering things that veil the mind or affect

“ibe Rusbd, Uidayat al-Mustohed, i, 3. ALSbAN'T aaid that the two types of
analogy are qryds al-ma'né and gryds al-shaboh. Alshasi', al-Mtisdlah, 479.

"Iba Rushd, Bidayat al-Mugtahed, i, 3

This at least is the Shaftite view. ALShAf'T, al-Risdlah, 479. See also ab
Ghaadli, al-Mustayfa, i 274

‘Theories oF Istamic Law M41

the brain, then, it could be extended to all higher-order, lower-order,
‘of equivalent meanings. This would cover all kinds of liquor causing
the same effect. Such extension would be through giyds al-ma‘na.
This is not acceptable to some in the case of the word khamr, es
pecially the Hanafis, who insist that ttamr is not a generic term,
but is a specific name used for wine alone, and names—like khamr,
Zayd, Bakr—cannot be assigned meanings; they are just names. The
Shafi'ites say that names can be viewed generically, but even if it
conceded that they do not we can always, they say, find an under
lying cause when the specific term used is not generic, and in the
case of khamr the underlying cause (‘il/ah) is intoxication. Thus, the
Shafi'ites would prohibit every intoxicating liquor by extending the
hukm of khame to it. By doing this they move from the category of
gids al-ma'nd to that of giyds al-‘illah ®

Qiyds al-‘illah has its limitations too, as the ‘illah has to be an
objective attribute that does not vary from person to person, or with
the circumstances. This can be shown by carrying on the argument |
in the case of kharnr. Thus, the Hanafites might say that “intowica: — _{ /
tion” or “being an intoxicant” is not a valid ‘illah for khamr, for had ~ "7
it been the reason for probibition, the drinking of one drop of wine:,.7))
would not have been prohibited, but it is, even though it does not ¢
intoxicate, The Hanafites, therefore, say that khamr ix prohibited for
itself, there being no underlying cause for its prohibition, or at least
‘one we can understand, and drinking even a drop of wine is prohib-
ited. This offense, they add, is to be distinguished from the offense
of becoming intoxicated, which is also prohibited, but by traditions
from the Prophet, not the verse of kharnr,

‘The Shafi*ites insist that “intoxication” is a valid ‘illah for khamr,
because the consumption of small quantities leads to drinking more
or larger quantities, The Hanafites would reply that by saying this
you have moved from an objective attribute to one that is subjec-
tive; you have moved from the ‘illah to the hikmah (wisdom) behind,”
the verse, the “spirit of the law.” Hikmah, they argue, is not valid 1
‘as an ‘illah, because it may mean one thing for one person and an- ">
other for another person. Further, it could vaty according to the '~/ *
circumstances, like hardship in the case of prayers during a journey.

There are traditions which prohibit intoxicants explicitly. In this case it would /*+
not be analogy at all, bet the application of the literal meaning The example is
being used to illestrate the meaning of giyds. The hum for intoxscating liquors

” other than khomr is derived directly ftom the literal implications of traditions

142 Common Features of Interpretation

‘A person riding on horseback may face some hardship, while another
person travelling by a comfortable train or ship may not, The ‘illah,
therefore, is chosen as travel (safer), which treats everyone equally
and permits the curtailing of prayers. It is a stable underlying cause.
‘The Shafitites, still not content, say that there is another aspect to
this ‘illah of intoxication. Is it not mentioned in the verse, they say,
that wine and gambling lead to enmity and hatred? Is this not a
convincing (mukhif) reason that even a drop of khamr be prohibited,
and does not intoxication appear as a mundsib (suitable) reason that
conforms with the general practices (tasarrufdt) of the law. But, at
this point we enter into the realm of the new theory developed by
al-Ghazall, which will be taken up later.

prs :
ce th hah, endl fret frm satlogy wrod
Qiyds al-shabah, on the other hand, is not acceptable
to all the jurists, though Ibn Rushd believes that it has been used
often. An example of a valid form of giyds al-shabsh is given by
al-Shaf'T himself, who calls it ijtihdd.* A person who violates the
prohibition of hunting during the pilgrimage is required to slaughter
‘4 similar (mith) animal,*" For example, a camel for killing an ostrich,
‘or a sheep for killing a gazelle. Determining what is similar requires
‘ijtihdd, This is undertaken through giyds al-shabah, The word mithi
Gila) i this verse implies that a search is to be undertaken for a
_ similar animal that can be turned in as compensation. This is a search
outside the texts and not within them for a rule of law. Compared to
ro) this is the search for the direction of the gibleh for a man travelling
im a desert on a cloudy day or night,*? ‘This form of itihdd, one
may point out, does not require jurists, but experts in other areas,
However, it has been given given considerable attention by al-Shafi'T
in the discussion of qiyds in his book al-Risdlah. The later jurists,
when their discussions had reached some level of sophistication, gave
this method the name of » that is, the verification of |
the attributes in the case presented for decision. The giyds al-shabah
rejected by other schools is not this limited method, but the extension
of the hukm on the basis of similarity between apparent attributes
that cannot serve as the ‘illah,®

'AL-Shafi', al-Risdlah, 490-92.
“Qur'an 55 95,
tbid, 447-89,
ALGhazall, Shy’ al-Ghalit, section on quyds al-shabah.

Tueortes of Istamic Law 143

‘The important point to note here is that for al-Shafi' himself

taece ere tls. ts) sold formant of giyas: giyds al-ma'na and giyas
fe states this in al-Risalah as well as in al-Umm:

Qiyas is undertaken from two aspects. The first is when a thing

is included in the meaning (ma'na) of the asl ‘There is no
disagreement about this. (Then) there may be « thing which
hhas some similarity to those in the sources. It is, therefore,
associated with the one closer to it of greater in similarity
(shabon).*

‘The apparent meaning of this statement would be that al-Shali'i
does not permit even the regular type of giyds known as giyas al-
‘illah, as described above. This would make his method of giyax very
narrow, which would not be very different from the methods of the

_ Zahirin, because giyds al-ma‘nd is nothing more than

coil tha. Oa thactles aah AMRIT ains
that any case faced covered under meth
‘We have not been able to trace in ‘in Ma WuGk ab Mietiek any example’
that can be classified as an explicit case of giyas al-‘illah, All the
examples he gives are either those of giyas al-ma‘nd or of the limited
form of giyds al-shabah that he approves. The situation in al-Umm is
somewhat different, although there too he maintains that there are
the only two types of analogy.** It is possible that the later Shafi'ite
jurists were able to squeeze in giyds al-‘illah as well as methods of
discovery of the ‘illah, like ikhdlah, into the practices of the school
by extending the meaning of giyds al-ma‘nd. Perhaps, this is also
the reason why it took Shafi‘ite law and legal theory two and a half
centuries to mature. An answer to this issue needs extensive research
‘and access to works of very early Shafi'ite jurists, and these may not
be available.

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maintains that had it been an independent source it would have
amounted to the establishment of additional law after the time of
the Prophet, as it would not have been based on one of the legally
valid principles.

“ALShAA'T, Al-Risslah, 479, See also al-Umm, vii, 85

See al-Umm, vii, 85.

“Ibn Rushd, Bidayat ab Muytahed, |, 4.

144 Common Features of Interpretation

‘To recapture some of the ideas listed above, we may state a few
of the rules from the large body of principles that a jurist carries in
his armor before he attempts to interpret the texts. The principles
are stated in our own language for the sake of simplicity and may be
stated somewhat differently in the books of usil. The purpose is to
have a general idea.

1, Each time a hukm is discovered in the Qur’én it is said to be proved.

(Unanimous)

2, Each time a hukm is discovered in the Sunnsh it is said to be proved.
[Unanimous)

3, Each time a hukm is discovered though"ijma’ it is aaid to be proved.
[Unanimous, though al-Shafi' had some

4, Each time a hukm is discovered through qty it is said to be proved.
[Unanimous)

5. Each time a hukm is discovered through the opinion of a Companion
‘it is said to be proved. [Not unanimous]

6, Each time s command (amr) is found in the texts it conveys an obliga-
tion, unless another evidence indicates the contrary. [Not unanimous]

7. Each time a proscription (nahy) is found in the texta it conveys a pro-
hibition, unless another evidence indicates the contrary. { Not unan-
i

Each time a hukm is expressed in general terms it applies to all its
categories with a certainty, unless restricted by an equally strong
evidence. ( Not unani

9. The huém is proved through the persuasive power of the dali! and

not through the number of evidences. [Not unanimous)

‘These are only a few rules out of a large body of rules, sometimes
called the qawdnén ugiilfyah, that have been stated so that the reader
may get an idea of the tools employed by the jurists.

Knowing these rules is only part of the task, and the jurist is
expected to have in his mind the entire structure of the law, the
set of facts facing him, and all the causes and conditions that either
affirm the hum or create an exemption. In addition to all this, the
jurist must be proficient in the Arabic language, for not only are the
sources in Arabic, there are many rules relevant to language that
may affect interpretation. Above all, the jurist can only begin to
use these rules once he has all the textual evidences related to the
issue before him, and he has decided which evidences override others,
that is, abrogate them or restrict them. The task of the jurist is not

=

Turontes oF IsLamic Law 145

easy and it needs many skills and prolonged training to be able to
interpret the texts for the derivation of the law

Chapter 10

Theories of General
Principles

In this chapter we shall examine theories that are based on the gen-
eral principles of Islamic law, Why this title has been chosen should
be obvious by the end of this chapter. It was mainly the Hanafi school
‘that used this methodology. Malik’s school, however, had a similar
methodology, not only because the two jurists were contemporaries,
but also because the sources of law or principles of interpretation
used by both schools have much in common, Some of the Malikites,
for example, accept the opinions of Companions as a source of law.

It is claimed by some modern scholars, like Abé Zahrah, that
the Hanafites had different upd! than those used by al-Shafi's. The
Hanafites, they say, derived their updl later on from the derived law,
that is, they constructed their methodology from the derived law
through a reverse process. They also maintain that the upd! of the
Hanafis were more like the gawé'id fighiyah or the general principles
of the law. If these statements are intended to mean that Hanafi
methodology was inferior in some way, then, nothing could be farther
from the truth. The nse of these general principles reflects the real
strength of the Hanafite method. My purpose, however, is not to
show that one methodology was better than the other or that one
jurist was superior to others. They were all great jurists and each
made his own contribution to the system. Further, each method of
interpretation may have a distinct function to perform in the modern
age

Vafortunately, in the middle period of Islamic legal history, Abi
Hanifah and his school were subjected to a propaganda that seems

148 Theories of General Principles

unjustified. The truth is that the Muslim world may never again pro
duce a jurist of bis stature, and jurists who followed later, whatever
their affiliation, can match his skills with great difficulty. This in no
way means that the other great jurists were somehow less in stature.
Yet, this chapter may in some ways be considered an indication of
what the Muslims owe to Aba Hanifah and his method.

10.1, Background

‘The history of Islamic law is dominated by a confrontation between
two groups: the Ah! al-Ra'y and the Abi al-Hadith.’ The former term
is applies to the majority of Muslim jurists of the first two centuries
of Islam, who are aecused of injecting their “personal opinion” (ra'y)
into the law instead of relying on the Sunnah (acts and decisions)
of the Prophet. Among the surviving Sunni schools of law, the Abl
al-Ra'y are considered, on the whole, to belong to the the Hanafite
school, and the founder of this school, AbG Hanifah, is designated as
the champion of ra'y.? The Malikites and the founder of the Maliki
school, Malik ibn Anas, are considered to belong to the latter group
of jurists, who are said to have based their opinions on the Sunnah of
the Prophet. The Shafi's, Hanball, and the now extinct Zéhiri school
are also considered to belong to the latter group.

Determining which early jurist belonged to the group using ra'y
was # favorite pastime of the later Shafi'! jurists and of the tradition-
ists, but most of their trades were directed against Abi Hanifah.>
So effective and powerful was the propaganda launched against the
furists using ra'y that we find even modern Western scholars ike
Goldziher succumbing to it. After quoting a large number of opin-
ions from these propagandists, one of which he interprets to mean

‘Goldsiher hae recorded the views of the Abi al-Hadith in great detail, See
Goldsiher, The Zahiete, 6-19.
“bid, 13.

*The Shafi'ite scholars appear to have « tradition of criticising Abt Husifah oc-
casionally. For example, the leading Shaft scholar [mim al-Haramayn al-Juwaynt
while discussing « minor ineae, attacks hiss, without apparent cause, by saying.
“Did Abo Wanifah have any hesitation in rendering an opinion on an iesue of figh
UC they say ‘no,’ we would say that such a mas cannot be counted
‘company of the learned.” Al-Juwayni, al-Burhan (Cairo, a.d.), &, 1364. The
tor of the book notes that such s statement about Abd Hanifah hurte the mim
al-Hatamaym more than it does ADS Hantfah

Tueortes or Istamic Law 149

that Aba Hanffah was a “shrewd casuist and no legal jurist,"* he
says: “While the schools of tradition directed their attention to ex-
isting and concrete facts, which they judged on the basis of concrete,
existing, and historical legal data, the exponents of ra'y dwelt on
casuistries that were void of any current interest.”* This is a grave
charge, and even the Shafitite scholars did not assert this. In tradi-
tional Muslim circles, as a result of this propaganda, a bias against
Abd Hanifah and his school is found even to this day.

‘The Abi al-Hadith were successful in their movement against the
schools that employed ra'y. They came to dominate the scene, at Jeast
where legal theory was concerned. It was al-Shafi''s legal theory that
they accepted in the end, with some modification. The trend contin-
ued and there were many attempts to go even beyond the middle
course taken by al-Shafit, in the adoptionyof literal rules, Examples
of such literalist tendencies were reflected in the extinct Zahiri school
‘and, to some extent, in the surviving Hanball school, It was from
these literalist tendencies that the magdgid al-shart‘ah, the purposes
‘or the ultimate principles of the shari‘ah, appear to have emerged.
‘The credit for this goes to the Shafi‘ite jurist-philosopher al-Ghazali,
and also to his teacher al-Juwayni, the Imam al-Haramayn.

‘The first task facing us is to study in more precise terms what we
mean by ra’y and by “literalist interpretation.” The earlier jurists
have been accused of using ra'y, but what is ra'y? Modern schol-
ars have called it “sound opinion,” “individual opinion,”® “personal
judgment,”® and “an inevitable postulate of the realities of practi-
‘cal legal affairs in the practice of judgeship.”?° It is also stated that
ra'y was personal opinion in the beginning, but later came to be

“This, of course, is not his own conctusion, but what he thinks 4 statement of
‘one of the propagandists means

*Goldaiher, The Zahirts, 16.

“There is an interesting story about wach bias sarrated by the publisher of
the well-known Hanafite book by al-Kiskal (4. 587) Boda’ al-Sana'i' fr Tartib
a.Shara¥’, 10 vols., Cairo (1968). A very old friend of this publisher, who was
4 scholar, visited him and asked him what he was plasaing to publish. When
he lenrned that he was about to publinh al-Kaskal’s book, the gentleman lost his
temper and accused the pabliaher of being guilty of « grave offense. The publisher
‘haa related this story on the first page of the fret volume.

"Schacht, Introduction, 26, Schacht, Origins, 96

“Ahmad Hasan, Analogical Reavoning, 27.

"Goldsiher) The Zahirts, 11

‘Ibid. 6, Whatever that means,

150 Theories of General Principles

equated with analogy (giyds)."' If this was the case, then all the
schools could be accused of using ra'y.'? Why then the propaganda
against the Hanafites?

All this, in fact, means nothing in legal terms, insofar as it
does not indicate the methodology used by earlier jurists like AbO
Hanifah.”® The term ra'y as used here is vague, and has no legal
significance, that is, for a lawyer, terms like “sound opinion” or
“personal judgment” have no meaning unless analyzed further. The
meaning of ra'y can only be appreciated if we are able to compare the
methodology of the Abi al-Ra'y and that of the Abl al-Hadith, and
to measure the impact of both methodologies on the development of
law.

‘To accomplish this we should note a few basic facts about the
nature of Islamic legal theory and the effect of the Shafi'ite theory on
the development of the law. It is only then that we can understand the
methodology of the earlier jurists, and be able to assign an adequate
meaning to the term ra'y of which the earlier jurists were accused.
Finally, some features of the two methodologies should be compared.

;'This will be accomplished in the next chapter when the theories of
strict interpretation are described.

10.1.1, Approaches to legal theory

The discipline of ugiil al-figh has been equated with “Islamic legal the-
ory” on the analogy of modern (Western) law, because both answer
uestions about the nature of law, and explain how judges discover
.d apply this law. There is, however, an essential difference between
‘the two, Western legal theory attempts to understand what judges
actually do and then, gives a seascushle explaaation ofthe proces,
that is, it outlines a theory after an analysis of the
Upiil al-figh, on the other hand, at least according to the generally
accepted view in traditional Islamic law, governs the judicial process
and determines beforehand the methodology that is to be employed
by the jurist for the discovery of the law and its application to a

“bid. 1
This is what Iba Hasm, the Zahirt scholar did, because be rejected ¢iyés
Goldsiher appears to be pointing oet his view about the assumed similarity

Goldviher admitting this says that “There even prevails uncertainty con-
ceening how Abs Hastfak used the speculative components of legal education.”
Goldisiber, The Zahirts, 12.

"*Suck an explanation is sometimes designated as 4 “theory of adjedication ”

‘Turonies oF IsLaMic Law 151

given set of facts. It, therefore, lays down a methodology that the
judge and the jurist are obliged to follow. This is the reason why
‘an understanding of legal theory, as a separate field of study, is not
essential for the practice of law, but a thorough grounding in wsdl
al-figh is considered indispensable for the Muslim jurist and judge.

‘This has not been the position throughout Islamic legal history,
that is, an understanding of legal theory in all its details with a pre-
determined methodology has not been a prerequisite for the practice
of Islamic law in all ages. In fact, till the last decade of the second
century of Islam, no legal theory was sytematically recorded.!* This
was a period when the law grew from the inner essential core into
a highly consistent and mature legal system. This in no way indi-
cates that the judges and jurists responsible for the development of
Islamic law did not adopt a methodology for the discovery of the law,
Tt simply means that no legal theory was expounded to understand
and analyze this methodology, just as no legal theories were elabo-
rated for the earlier periods of English common law, until the law
had reached a level of maturity, and even then they fell within the
domain of the legal philosopher rather than that of the practising
lawyer or jurist. Thus, the lack of an elaborate legal theory does
not indicate the absence of a sound methodology, An attempt will be
made, as we proceed, to show that there was a definite methodology
that was followed more or less by all the judges and the jurists in the
second century of the Hijrah.

It was with the appearance of the great Muslim jurist al’Shafi't
(150-204), the founder of the Shafi‘ite school of law, that the posi-
tion was reversed. From now on a skill in legal theory was to be a
prerequisite for every person aspiring to be a jurist, and it was le-
eal theory that was to determine the methodology that such a jurist
would employ. Al-Shafi'T began with the identification of the primary
sources of Islamic law. As is generally believed, he was successful in
securing a status for the Sunnah of the Prophet that was hitherto
denied to it, it is claimed, by the earlier jurists, He laid down rules

Some Hanafite jorists believing that s statement of legal theory is essential
for the proper development of the law, invist that it was Aba Hantfah who wrote
the first book on usd! al-figh. Such » book is not available, nor is it ever referred
to by later jurists for legal inrues. ‘The book koown ax al-Figh al-Akbar covers
only a few pages and deals with the fundamental assumptions pertaining to the
enets of faith.

‘John Austin's work can be considered to be the first systematic attempt to
‘outline theory for common law,

152 Theories of General Principles

for the literal interpretation of the texts and for the extension of the
rules in the texts by means of giyds (analogy).!” He rejected certain
methods followed by the earlier jurists, like istihsdn (which is usually
the preference of a stronger concealed analogy over the obvious),!®
and modified others, like consensus of opinion (ijmd‘).' He insisted
that any rule of law derived by a jurists must be tied to a transmitted
textual evidence (dalif). He also rejected the system of precedents,
as will be shown later. Further, al-Shafi'y laid down strict conditions
and qualifications for the person who could be considered qualified to
interpret the law and to declare something permitted or prohibited.**
He criticised the methods used by the earlier jurists, but instead of
restricting his analysis to what the judges and jurists who had pre-
ceded him did, he proceeded to determine what the judges and jurists
were required to-do in future.

AL-Shafit’s theory was not accepted all at once. Some of his ideas
were modified, but it was his theory, in large measure, that appears
to have been adopted after two centuries or more, at least by the
Shafi'ite jurists. This slightly modified version of al-Shafi'l’s theory
is what is today called the “classical legal theory” of Islamic law
by those who claim that a common theory was adopted by all the
later jurists and schools. Al-Shafi'l is considered to be the “champion
of the Sunnah” and the true author of Islamic jurisprudence. He in
deemed to be an outstanding genius of his times. Indeed he was, for
he assessed what was going on in the judicial field in his age all over
the Muslim world and was able to make proposals for what should
be done.

MALSHAR', l-Risdlah, 478. He dewoted 4 separate section to analogy, but
discusses this principle in different places in the book. See, e.g., page 39 where he
makes « clear statement about the four sources of law. Tix he does within the

topic of satihadn an well.

“thid. 507

"Ibid. 471-16.

bid, 39,

*Ybid. 39, 809-11; abSRARY, af Umm, vil, 274,

* After this text had been written Dr. Zafar Ishaq Ansari pointed oul an arti-
cle by Wael B. Hallag, “Was al-Shafi the Master Architect of Inlamic J

dence,” 25 International Journal of Middle Eastern Studies (1993), $87-605. In
thir atcticle, Hallag brings up evidence to show that al-Shafi' cannot be consid-
ered the founder of Islamic jarisprodence as is generally claimed, because much of
the work attribated to him was actually done by jurists like al-Shtshi

He shows in this article that *ShA'T's Risdla and the theory it embodied had
very little, if any, effect during most of the 9th century; and that the image of

Tueonses oF Istamic Law 153

10.1.2. Developments in the law after al-ShafiT

‘A ttue test, however, of any legal theory that proposes what should
be done instead of analyzing what has been done is to measure how
far it has led to the further development of the positive law. If the
theory of law propounded by al-Shafi's, ot its modified version the so
called “classical theory,” was as effective as it is claimed to be, then,
its effect should be reflected in a rapid growth of the law, The results,
however, may appear disappointing to some. Al-Shafi'l's theory did
not lead to any growth in new areas of the law. It simply led to a
slightly modified, and at times somewhat restricted, version of the
law existing before his time. This should not be interpreted to mean
that al-Shafi't's theory was narrow or less effective. The truth is that
al-Shafi'i's theory is designed with a different purpose in view. It is
designed to meet the needs of the essential core of the law, the fixed
part of the law described earlier, and not the flexible part that was
now the domain of the ruler. Let us examine this development in a
little more detail.

Muhammad ibn al-Hasan al-Shaybani (d. 189), the disciple of
Abd Hanifah, was the first jurist to have systematically laid down the
entire corpus of the law, a little over one and half century after the
time of the Prophet.** His book al-Mabsut, or al-Agl as it is called,

ShAf's as the founder of wy@l al-figh was a later creation.” (p, $88] He even tries
o show that abShafi'T was not acknowledged ax mach of « traditionist by later
scholars like Abmad iba Hanbal and others. [p. 594)

* Such claims are usually made in the traditional Muslim circles and not in the
‘West, where it is believed that falamic legal theory and the positive doctrine have
ino relevance to each other. See section 2.2 in Chapter 2 for Schacht's statement
quoted earlier or his book Introduction, 60

Some books of this great jurist are listed to give an idea of the work done at
that early stage, The square brackets show different editions, probably pirated, of
the the same edition. Mubammad ibs al-Hasan al-Shaybant (750 (ca.)-804 oF 5),
Kitab al-Apl, Ab al-Wafh" al-Algbiat, Ed., 3 vols. (The complete work has not
been published) (Haydar Abid al-Dakkan: Matba’at Majlie Diirat al-Ma’arif
a'Uthmanlyah, 1966-); also (al-Quhirab: Masba'at Jami‘at al-Qahirah, 1954)
[also Kitab al-Ag! ol-Ma'raf be-al-Mobsat (Bayrat: “Alam al-Kutul
(Karachi: [darat al-Qur’'to wa-al"Ulim al-Islamiyah, [198?-})]; Al-A
Buyd" wa-ot-Salom, Chafik Chebata, Ed. (Cairo, 1954) (Part of Kutab al-Ag!);
Kitab al-Siyar al-Kabir (1957) (Partly translated by Majid Khaddari, /slamic
Law of Nations: Shaybant’s Siyat (Baltimore, 1966)); Kitab al-Huyyah ‘ala AN!
l-Madingh (Waydar Abad al-Dakkan: Lajnat Ibya! al-Ma‘acif al-Ne'maniyah,
1965-) [also (Bayrat: ‘Alam al-Kutub, 1963)]; Kitab ol-Athar (Karachi: al-Majlis
allt, 1965-); Jue’ ruin of-Amale (Baydar Absd, al-Dakkan: Matba'at Ma-
jis Davirat al-Ma'ssif al-'Uthmantyah, 1986); AL-Jémi’ al-Kobir (Cairo, 1356)

154 Theories of General Principles

would presumably exceed twelve sizable volumes if it is published
in its entirety.2* He compiled many other works too, and together
‘these are known as the Zdhir al-Riwdyah. In his works, al-Shaybani
recorded not only the opinions of Aba Hanifab and Aba Yésuf, but
also those of other jurists, like Ibn Abi Layla, Zufar, Hasan ibn Ziydd,
al-Thawri, al-Awzi'l, and Ibrahim al-Nakha‘l, His works show that
the Islamic legal system was fully developed in all ite branches at that
time, even in the areas of international law and hiyal. In addition to
this, Aba Yasuf compiled his book on revenue, the Kitéb al-Khardj,
especially for the ruler. In these works there are many things that are
later given up by the jurists. After the Hanafis, no school discusses
jin detail the problems of international law (siyer) or even matters of
revenue (khardj);. The latter now being undertaken as minor sections
within the chapters on spoils or zakdh, The reason is obvious. These
areas are now the domain of the ruler, a part of the flexible sphere
of the law, they will change with change in the times.

In the Malikite school the first book was Malik’s al-;
which is also considered to be the first book of Islamic law. This
was followed by Sabnin's al-Mudawwanah al-Kubré, which appears
to have been compiled shortly after al-Shafi'l's death, and is written
in response to the verdicts issued by the jurists of Iraq, the Hanafites
and others. It contains verdicts issued in accordance with Malik's
principles by Ibn al-Qasim as recorded by Sabniin. This book, com-
piled after al-Shafi‘i's death, does not take into account the new
theory propounded by al-Shafi'T or his views on the law. It appears
to be a mixture of the matters falling under the fixed as well as the
flexible spheres of the law.

{abo (Bayrat: Ihy8 ahTurath ab Arabi, 1979); alo (Lahore: Dar alMu'teit

‘ak Nu'mAniyah, 1961); ol-Jém’ al-Soghir (Haydar Absd, n.d.) (also (Karachi:
Idarat a-Que'ss waral'Uidm al-lalinmtyah, 1987)]; Kitab ol-Mokhary ft ol- Hiya,
J. Schacht, Ed. (Leipzig, 1930) [Das Kitab ol Mahérid fil-Yijol des Muhammad
ibn al-Hoson of-Seibdns (Hildesheis, G. Ome, 1968)|; Kitab al-Ziyadat (Haydar
Abad, n.d.); abMhtisah ff ol-Risg ol-Mustojab (Dimashq: ‘Abd al-Hadi Haretint,
(Bayrat: Dar al-Kutub al-Tmiyah, 1986)); of-Kasb (Dimashq: ‘Abd
ab Hadt Harqant, 1980),

Only the first three volumes of this book have been published, ax a result
of the remarkable efforts of Ab@ al-Waft’ al-Afghisi. The section on sales was
edited by Chafk Chehata The remaining existe in manuscript form and needs to
be pablished. It is to be hoped that an Islamic country ike Pakistan, where most
‘of the people follow the Hanafl school, would take interest in the publication of
the entire book. The complete manuscripts are available in Cairo, There is also a
need to honor and acknowledge the work done by Abd al-Wafl’ al-A(ghint,

Tueorigs oF IsLaMic LAW 155

This shows that the law had been fully developed by the time of
‘Malik and Abi Hanifah. A cursory examination of the Hanafite and
‘Milikite works shows that the law was considerably developed, and
there is very little difference, except in details, between the law as it
existed then and what we find in later books today. Most of the later
works are commentaries on that earlier law. Even Joseph Schacht
noticed this stage in the development of the law. The state of the law
much before al-Shafi'l's time, and even before al-Shaybani’s work, led
Schacht to conclude: “When the Umayyads were overthrown by the
‘Abbasids in 132 of the hijrah (A.D. 750), Islamic law as we know
‘it had acquired its essential features; the need of the Arab Muslim
society for a new legal system had been filled,”* It appears that he
draws this conclusion because by this time Aba Hanifah and Malik,
‘as well ax other well-known jurists had completed their work,

‘What, then, was the purpose behind the new theory propounded
by al-Shafi's? Al-Shafi'T was a remarkable man with tremendous akills,
He appears to have seen clearly all the developments that had 2
curred before him, It also appears that he saw clearly that th 7
was now making laws in certain areas and assigning it to functionar-
jes other than the gddis. Realizing his duty to the essential core of
Islamic law, which was derived directly from the texts, he designed a
theory that was to meet the needs of this inner legal core, and would
ensure its purity by tying it in with-its sources. This could only be
achieved with a strict theory that would exclude anything that fell
within the domain of the state and not within the immediate domain
of the Muslim jurist. His work, therefore, does not concern itself with
questions of international law, nor with questions of khardj (revenue),
which are two clear examples of matters that fall within the fiexible
sphere, the domain of the ruler.

‘The first book of law in the Shafi'l school is attributed to al-
‘Shafi himself?” This was the Kitdb al-Umm. It deals at length with
‘the ‘ibdddt (the ritual law) and even with the criminal law, but ig-
nores several areas of the law of obligations. It was followed, fifty
years later, by a summary of this book and some additional details
by al-Muzani.* Though the names of some early Shafitite jurists

;

‘Schacht, Introduction, 49,

7710 in vehemently argued by Zaki Mubirak that this book was not written by
alShaf't, bat by alBuwaytt. This theory has not been taken seriously by other
scholars. See the discussion of the issue by the editor of al-RisBlah, 9-10.

™ Aba Tbethim lams'd ibe Yahys al-Musani (264/878), Muthtopor. It is printed

156 Theories of General Principles

are mentioned in the books of fabagat™ and orcasional references to
them are made in the works of later Shafi‘ite jurists,>? the first/book
of any consequence was written by al-Shirazi (d. 476)" two and one-
half centuries after al-ShafiT’s death. A little before this,al-Mawardi
(d. 450) wrote his famous book al-Ahkdm al-Sulténiyah,>? and an-
other on the duties of the gédi, but Shafitite law was not foremost
in his mind, and these are books of a different nature.” This period
is followed by a large number of works not only on Shafitite law,
but also on Shafi‘ite legal theory. The law derived on the basis of al-
‘Shafi''s theory appears to have matured by this time and coincides
with the maturity of his legal theory.

Because al-Shafi'''s theory was concerned with the fixed part of
the law, some areas of the law that are dealt with by other schools
were scarcely touched upon by al-Shafi'. Thus, in several cases,

Shafi'ite law may even appear to be highly restrictive, as compared
to the law that had existed reason is that Sh&fi'ite
adopted by

the earlier jurists, as it was meant to deal with the fixed part of the
law alone, Take the case of the law of partnership (sharikah). There
jis an elaborate structure of partnerships in the Hanafite system, and
‘there are several forms in Malikite law, but al-Shafi'T does not al-
low any of these forms. The only form of partnership that he allows
is co-ownership,®® and this exists among human beings anyway, by

‘on the margin of al-Shafi't (204/802), ol-Umm, 7 vols. in 4 (Cairo, 1388/1968).

See, e.g., Aba Isbiq Ibethim ibs ‘Al al-Shirast (1003 (ca.)-1083) Tobagat
al. Pugaha (Cairo, 1937.)

**Such references are to be found, for example, in the work of abJuwaynl, ol-
Burhan, possem.

* ALShiraat, al-Muhadhdhab ft Figh Madhhab al-Imam ol-Shafi', 2 vols. (Caito,
d.); Kitab ol-Tanbeh ft l-Figh (Cairo, 1348),

*AL-Mawards, al-Ahkdm al-Sulpintyah (Cairo, 1973)

*° As compared to this there is » constant stream of Haoafite manuals of law
during the period following al-Shafit's death. This is not to say that al-Shahi't did
not have any followers during this period or did not have aay influence at all. The
influence of al-Shafit's thought is indeed felt in the Hanafite works around the
middle of the fourth century, for example in the writings of al-Dabast, al-Tahawi,
and abJasqle (370), and it appears that be had a sizable following by this time
‘The point is that these followers do not appear to have influenced the further
development of the law.

“In fact, the first systematic exposition of Shafi‘ite law was made by al-Nawawt.

**See Abeaham L. Udovitch, Profit and Partnership in Medieval Ialam (Prince-
ton, 1976); ‘AW al: Khaff, ol-Sharikat fv al-Figh al-lalami (Cairo, n.d.)

‘Tuzortes oF Istamic Law 157

necessity. Even the name “partnership” is not applied to this form
of ownership in modern law, and it is referred to as co-ownership.
He also does not allow general agency (wakdlah ‘émmah), which is
permitted by other schools.

In order to ensure that the fixed part of the law would develop
in the proper way, al-Shafi'l laid down strict conditions for those
who would be interpreting the law for this part. These are listed in
his book al-Risdlah.® Schacht felt that this could be one reason for
the stagnation and taglid that set in after al-Shafi'''s time, because
the first theoretical indications of this were noticeable in al-Shafi'T
himself.°” Such a view is based on a misreading of the true function of
al-Shafi't's theory. The conditions were laid down for those who would
be dealing with the fixed part of the law, not for those who would
be occupied with the flexible sphere, where obviously the conditions
would be somewhat relaxed.

During the period that Shafi'ite law was moving toward maturity,
the Hanafite jurists appear to be assessing what the earlier jurists
of theie school had done, that is, what methodology they had used
to develop the law. Their method of studying legal theory resembles
what is done in the West today, insofar as it is an assessment of what
the judges had done and not what the judge should be doing. Jurists
like al-Karkbi,"* al-Khageaf,” al-Dabasi,*? al-Tabwi,"" al-Jaggiig,

MALShAR', al-Riadlah, 39, 509-11; al- Umm, wit, 274.

"Schacht, Introduction, 70.

‘Abd Allah ibo al-Husayn al-Karkli (340/935), Risdlah fi al- Uyol, on pp. TH
87 following al-Dabast (430/103), To ‘vt al-Nagar (Cairo, n.d.); see also al- Upal
ollats ‘alayha Madar Fura’ al-Hanafiyah, with comments by Abe Hafy al-Nasaf
(Cairo: al-Matba‘at al-Adublyah, n.d.)

Abu Bake Abmad iba ‘Umar al-Shaybant al Khaggaf (797-875), Kitab Ahkarn
al-Awgaf (Cairo, 1322/1904); Kitab Adab of-Qodt (Cairo: Qism al-Nashe bi al-
Jami'ah al-Amrikiyah, 1978); Kutab alNafagat (Bayrat; Dar al-Kitah ab‘Arabi,
1984.)

“°Al-Dabeat (430/1039) Ta’sts al-Nazar, (Cairo, n.d.)

“'Aba Jafar Abmad ibe Muhammad ibn Salamah al-Hajet Al-Tabaws (852-
933), Al-Mubhtagar [fv al-Figh] (Cairo, as Kitab Mushhil al-Athar, 4 vols.
(Haydar Abad, 1333); Kitab of-Shurat ol-Kabir (Baghdsd, 19-7); also Das
Kitab As-Suft aus dem al-Garai’ Skate fi Surat des Aba Ga'far Ahmad thn
Muhammad At-Tahawi (Heidelberg: C. Winter, 1930.); see also Jeanne Watkin,
Function of Documents in Islamic Law, (Albany, j; Das Kitab Adkar al-
Horse iting ‘aus dem al-Gam' al-Kaber fil-SurSt des Abs Ga'far Ahmad

thn Muharwmad at-Tohaws (Heidelberg, C. Winter, 1927); Sharh Ma'ant al-Athar,
4 vols. in 2 (Cairo, 1386); /RAtilaf ol-Fugaha” (Islamabad, 1971)
Abe Bakr Abmad ibe ‘Al Al-Jassis al-Razt (370/981) Ahkam al-Qur'an, 2

”

158 Theories of General Principles

al-Samarqandi,*® and al-Sarakhsi carried out this process.“* There
were others too, but their works are not available. By the time of
al-Sarakhst (d. 496), any question about the nature of Hanafite legal
theory could be answered very easily. In addition to this, the Hanafite
jurists during this period were busy weeding out any inconsistencies
that had remained in their law, and again by the time of al-Sarakhsi,
as can be observed in his works, the law achieved a highly consistent
. The significant point here is that even the jurists of the Hanafi
id Maliki schools were now occupied with the fixed part of the law,
ke thelr predecessors. Because of this they fashioned. their legal
theories in a way that conformed, at least in outward form, with the
ine established by al-Shafi't. This has led some to conclude that
it is all one theory. Underneath the outward form, the theories of the
Hanafis as well as the Malikis retain their individuality, especially
the theory of the Hanafi,
Surprisingly, the time of the maturity of Shafi‘ite law and legal
theory coincides with the time of the full exposition of Hanafite legal
theory, is followed immediately by the time of al-Ghazaly and the

‘emergence of the views about the hazy, yet
recognizable, picture appears to pag oer the
development of the law and i
Sa eee
to the to ;
‘There appears to be no distinction between the domain of the jurist
and that of the ruler (imdm). Many of the jurists of this period were
gadis concerned with the administration of justice as well as with the
teaching and development of the law. This period is followed by the
recording of this law in the shape of manuals by the Hanafites and
‘the Malikites. This is followed by al-Shafi't’s assessment of the ear-
lier methodology and the exposition of a new theory of interpretation

vols (Istanbal: Matba‘at al-Awkaf ablslamiyah, 1355/1916), Sharh Kitab Adab
al-Qadi (Commentary on al-Khageif's work above) Farbat Ziadeh, ed. (Cairo,
1978). An introduction to his Ahkim al-Qur'dn is Uyal ol-Jaseay, Excerpts of
‘this book have bees peblisbed from Lahore ander the same title.

“Aba al-Layth Nagr iba Mabammad iba Abmad iba Ibrahim al-Samarqandi,
Fotdwo ob Nawaril (Haydar Absd, 1335); Khisdnat ol-Figh wa ‘Uyan ol-Mos3'd
2 vols. (Baghdad, 1385/1965).

“*Mubammad ibe Ahmad al-Sarakhst (4099/1097) Kite al-Mabsdt 30 vols.
(Cairo: Maba'st al-Sa'édah, 1324-31/1906-13]), Sharh Kitab ol-Siyar al-Kabir
(Commentary with alShaybint, Kitab al-Siyer al-Kabér) (Csiro, 1916 & 1957);
al-Nukat (Haydar Absd al-Dakkan: Lajnat Uhya’ al-Ma‘arif al-Nu'maniyah, 1967),

‘Tueortes oF Istamic Law 159

meant for the fixed sphere of the law. The new theory of interpre-
tation is followed by the development of Shafi'ite law, which reaches
maturity over a period of two centuries. A parallel development is the
exposition of Hanafite legal theory based on the decisions and prac-
tices of the earlier jurists of this school. This is followed by a new
theory proposed by al-Ghazall. However, we have yet to see whether
this was a new theory or a restatement of earlier ideas.

‘The main conclusion that we may draw from this, among others,
is that the Hanaff law grew in a period that we may consider an
‘era when the fixed and flexible parts of the law, as described in the
previous part of this book, grew together. It appears that it was
during the time of the Malik and Abi Hanifah, or the time of the
advent of the ‘Abbasides, that the domain of the jurist and that
of the state was identified clearly, though some signs of this may be
noted much earlier. Henceforth, the jurist would be occupied with the
exposition of the fixed part of the law and the ruler would concern
himself with the flexible part of the law.

Although, al-Sh8#‘ formulated his theory at the end of the second
century, the law expounded by him did not acquire a systematic form
till the fourth century or its end; that is, it became an influential law
around this time, Al-Sh&fi't's legal theory, however, did not bring
about any structural changes in the law. The influential law during
most of the Umayyad period as well as the ‘Abbaside period was the
Hanafite law. This law is said to be based on a methodology that
was dominated by ra'y. We may now examine the meaning of this
term within the overall methodology of the Hanafi school.

10,2. The earlier jurists and their methodology

What was the methodology of Abi Hanifah and his times? How did
‘the jurists interpret the law, and how did they use the sources? There
is very little that has been said in modern legal literature about this.
In fact, literature on this methodology is almost non-existent. The
‘major source that can provide us with information has not even been
published in full. This is the book of Muhammad al-Shaybani, the
disciple of Aba Hanifah, known as al-Mabsdt or as al-Agl, Only a
few volumes of this indispensable work have been published so far.
However, we do not have to delve too deep to discover the methods
used. Further, there are other works by this jurist that have been
published.

160 Theories of General Principles

Schacht used soine phrases, like “Umayyad practice” and “living
tradition,” to describe the materials used by the earlier jurists. Such
phrases were used more in relation to the Sunnah of the Prophet
rather than the methodology of the earlier jurists.** It may be men-
tioned here that the great debate about the wholesale fabrication of
the traditions that ensued ever since Joseph Schacht put forward his
claim is not relevant to the present study, except indirectly.

It may, however, be mentioned that as compared to Schacht, a
more reasonable view was adopted by Noel J. Coulson: “It is a rea-
sonable principle of historical enquiry that an alleged ruling of the
Prophet should be tentatively accepted as such unless some reason
can be adduced as to why it should be regarded as fictitious." In
other words, the benefit of doubt is to be given to a tradition until
sufficient proof is available to pronounce the verdict “guilty.” This
appears to be what the Muslim jurists and the traditionists did. They
were aware of the fabrication of traditions, and they had their own
d criteria for establishing their authenticity, Once a tradition
met the basic conditions they had no choice but to accept it. A tradi-
tion once accepted became part of the legal system, if it was relevant
to the law, and what remained to be scrutinized was how the jurists
handled this tradition, along with other legal materials, to discover
the law and decide disputes.

For the present study, therefore, what is relevant is how the earlier
jurists employed the traditions accepted by them, along with other
legal materials. As the emphasis here is on the methodology of these
jurists, it does not matter how a tradition was incorporated into the
Sunnah, or whether it was based on “Umayyad practice” —whatever
that means—or on something else. Once accepted and declared valid
this tradition became part of the Islamic legal system and our aim
is to understand how it was used after acceptance, The procedure of
‘acceptance or the debate about the sources is more or less irrelevant,
If the purpose is to understand how the principles of English law,
for example, are used and applied by the judges, it really should
not matter whether a principle was originally used by the Saxons or
Normans. The source of the principle would be of remote historical
interest, and would in no way explain the methodology of the later
English judges.

a generally Schacht, Origins of Muhammadan Jurisprudence (New York,
1940)
“Coulson, A History of Islamic Law, 65,

‘Tueonies oF Istamic Law 161

On some occasions, Schacht uses the phrase “superior technical
reasoning,”*” when he wishes to point out the superiority of the rea-
‘soning employed by al-Shafi‘T. It is not very clear what he means
by this phrase, especially when he does not elaborate what superior
technical reasoning stands for and what these technical assumptions
are on which such a view is based. Does he prefer one type of reason-
ing over the other because of criteria based on the science of logic,
or on the criteria laid down by the traditionists, or on those deter-
mined by modern law, or on criteria fixed by al-Sh&fi'l, or on those
determined by Schacht himself? None of the criteria, except the last,
would be relevant for such a comparison, and Schacht does not ex
plain the meaning of this phrase. One does get the feeling, however,
while studying his works, that he is judging the earlier jurists on the
basis of rules laid down by al-Shafi'l, and that he sees many things
through al-Sb&fi7’s eyes." It is the same method used before him by
Goldziher, who judged Aba Hanifah’s method through the eyes of the
Ahl al-Hadith, If this is the case, it would not be fair to those ear-
lier jurists who had made assumptions that were somewhat different
from those made by al-Shafi't, as will be explained in the following
pages.

‘We may begin the examination of the earlier methodologies by
noting that one of the major characteristics of Islamic law is the
‘use of the analogical method to develop the law. Schacht says that
according to the sociology of law “there are two methods by which
bap subject-matter is brought into a system, the analytical and

the analogical method. Islamic law represents this latter type of
systematizing in great purity.” He stated earlier that “[System-
atic reasoning] started with the exercise of personal opinion on the
part of the earliest cadis and lawyers,” It is not clear what kind
‘of “systematic reasoning” can be based on “personal opinion,” and
what is meant by “personal opinion” in legal terms, Further, is the
“analogical method” the same thing as “personal opinion”? These
terms néed to be understood more precisely before a judgment car

*'See Schacht, Origins, passim.

“This may be jodged from his statement about the method of the earlier judges
described by al-KindE: “Is is likely that some of the decisions which are attributed
to those hidis, and which are irregular by later standards.” Schacht, Introduction,
125, It ia obvious that by later standards he means standards determined by al-
Shas,

"bid. 208.
“Schacht, Origins, 98.

162 Theories of General Principles

be passed, The assertion about the “analogical method” appears to
be true about the post-Shafi'T period, but must be qualified for the
pre-Shafi'T period. Further, the two methods, the “analytical” and
the “analogical,” are not mutually exclusive as Schacht appears to
suggest, An explanation of the analytical method will help clarify the
methodology of the pre-Shafi period.

Roscoe Pound says that the analytical method is othing more
than “a logical plan which will explain as much as possible of the
actual legal] material”®! and indicate “the remainder for logical in-
consistency therewith.”*? The idea of law according to the analytical
jurist® contains three elements: a precept element, a technique ele-
ment, and an ideological element. By precept four things are implied:
rules, principles, standards, and conceptions. A rule is a legal precept
attaching definite detailed legal consequences to a definite detailed
set of facts, This is the earliest type of precept and the books of
the fugaha’, we may add, are full of them. A conception is a legally
defined category into which cases may be fitted in order to facilitate
the application of a series of rules and principles, for example, sale,
ballments, trusts, and so on. A standard is a measure of conduct
prescribed by law from which one departs at one’s own peril. The
standard of due care is an example. A principle, on the other hand,
is an authoritative starting point for legal reasoning from which we
seek grounds of decision by deduction. Principles are the work of
lawyers. They organize experience of interpreting and applying the
rules. In modern law, principles are said to come into operation in
“hard cases.” This has been explained in great detail by Ronald
Dworkin." Hart has called such an application as the “open texture
of the law."* Melvin A. Eisenberg, in his outstanding book The Na-
ture of the Common Law, explains the nature of principles'as follows

In the context of adjudicative reasoning, the term principle is
sometimes used to mean a moral standard and sometimes used
to mean a legal standard. Often it is unclear whether the term
is being used in the first or in the second sense.

"Pound, i, 72.

"Mbid, 73.

“See Pound, i, 2-18,

"*R. Dworkin, “Hard Cases,” Harvard Law Review 8 (1975), 1087.
“HALA, Hart, The Concept of Law, 132.

‘Taeonries oF Istamic Law 163

. Principles in the first sense—moral standards—figure in ad-
judicative reasoning but are not themselves Jaw. Principles in
the second sense—legal standarde—are by hypothesis law. It
is true that some standards are principles in both senses, An
angie freee ie orem ei
himself at another's expense **

... When principles and rules are conceived in this way, prin-
ciples may seem as explanations for rules, in the sense that
we commonly iavoke general propositions to explain those that
sare more specific. However, the force of principles is not merely
explanatory. Principles, like rules, are binding legal standards,
and often determine results without the mediation of rules.*7

Within this logical plan the analytical jurist incorporates his mate-
rials.

There can be no doubt that rules and conceptions were found
at a very early stage in Islamic law. As for standards, they had
started appearing, though they had not been refined. Schacht rec-
ognizes “fairness,” to give one example.* The most important pre-
cepts are principles, and the methodology of the earlier jurists reste
‘on the principles of Islamic law. This by no means implies that the
principles used by the earlier Muslim jurists were as flexible as the
principles that may be operating in the modern English common law,
for example. These were general principles derived from the Qur'an
‘or from the Sunnah of the Prophet. Some of these appear to be de-
rived principles, and are similar to maxims, but they should not be

brs ye verre of the maxims that are to be found in books
itl wa al-Nazd'ir, about which an explanation will be
provided in a later chapter.

bliice aos aperetn the other hand, to
be structured on their definition of the general word |. Thus,
if the command or prohibition in the text is mentioned in general
terms, the hukm or rule contained in such a text would apply to all
the categories that could possibly be covered by this general term.

‘This is how a ga‘idah kulliyah is constructed in Islamic law,
to the Hanafites. A clear exposition of this is provided by the Maliki

“CJ, the verse of the Que’ss: “And eat not =p your wealth among yourselves
unjustly” Qur'an 2: 148 as well as the provisions about riba

*’Melvin A. Eisenberg, The Nature of the Common Law (Harvard, 1988), 76
”.

“*Schacht, Introduction, 204.

164 Theories of General Principles

jurist al-Qarafi."” The significant point about such a principle, once
‘established, is that its implication is definitive (gat't), which means
that it cannot be restricted by an evidence that has a weaker implica-
tion, that is, which is probable (zanni). The strength of an evidence
is measured in two ways: through the strength of its ars

is definitive from both aspects. The Qur’an is transmitted by rel
tawdtur and is, therefore, definitive from the aspect of transmission,
It is also definitive because of the general terms in which it has been
expressed. A khabar wahid (individual narration) is always probable
in the Hanafite system. In other words, even if the individual narra-
tion is expressed in specific terms, and is definitive from this aspect,
it can never be strong enough to restrict the general word of the
Qur'in, because the thabar wahid is always zanni (probable) from
this aspect. The use of general principles for the derivation of the
Jaw by the Hanafites and the other jurists may be explained with the
help of a few examples.

The difficulty about the early Hanafi texts is that they merely list
cases that may be gathered under one principle or a series of prin-
ciples, For someone not acquainted with the principles that underlie
‘the stated cases, these texts become extremely difficult to under-
stand, without the help of a commentary. It is only sometimes that
a principle may be completely or partially stated in the text. We
may begin with one such text borrowed from the “Book of Sales
and Salam,” which is a section of al-Shaybani's Kitab al-Agl, For
the explanation of this example reliance is placed on al-Sarakhsi's
al-Mabsit. The issue relates to the meaning and principles of ribd, It
is also instructive in other ways, as many modern scholars keep on
groping in the wilderness for the meaning of ribd, when all they need
to do is to understand the principles related to it,

Shaybani begins the “Book of Sales and Salam” with a narration
from the Prophet:

Ahmad ibn Hafs said: Muhammad ibn al-Hasan related to us
‘and said, “Aba Hanifah related to us from ‘Atiyah ibn al-‘Awff
from Aba Sa'id al-Khudri from the Messenger of Allah, may

"See the introductory past of al-Qurafl: Sharh Tongth al-Fugal (Baléq, n.d.)

“To be sure, the rule varies depending on whether the subject-matter relates
to the ‘Wbadat or to the mu'dmalat.

Tueonigs oF Istamic Law 165

Allah's peace and bleaings be upon him, who said, ‘Gold for
gold, like for like, from hand to hand, and the excess is riba;
silver for silver, like for like, from hand to hand, and the excess
a riba; wheat for whest, like for like, from band to band, and
the excens is ribd; dates for dates, like for like, from band to
hhand, and the excess is ribé; salt for salt, like for like, from
hand to hand, and the excess in riba'"*?

‘To this he appends a narration from Ibrahim al-Nakha‘l:

Muhammad from Ab0 Hanifah from Hamméd from Ibrahim,
who said: Exchange (make an advance payment with) what is
measured for what is weighed, and an advance payment with
what is weighed for what is measured, but do not make an
advance payment with what is weighed for what is weighed
for with what is measured for what is measured. If the species
are different in what is not measured or weighed then there is
‘no harm in (exchanging) it, two for one, from hand to hand,
‘and there is no hazm in it (even) with a delay....°

In this text first the principles, that are both moral and legal, are
stated by narrating the tradition from the Prophet. This is followed
by the statement of the precedent from Ibrahim al-Nakha'l upheld
by Hammad and then upheld by AbG Hanifah. After stating the
precedent and the principles maintained in them, al-Shaybani goes on

“AbShaybanl, Kitab ol-Buye’, 1:
Doll ae gs Mie ga IG geal, AF Wp: JG ate oy al
Sealy ably JB fey le DI be Di pe oo yal ame lye
aN ey dll ey Lag Jap He CA Cyc Ly ually ey Lay fr De
Pine key ally ee ae JB eM Aye My aly ay Lay J De hs
oy Say ae La te te HY
Tbid. 2; rf
Ue ely oy. Neh Ue Palys UT pall ge ath oe them Gl ge
BEN Nl,» I UP I le Vy O59 LP Gage le Py IR UP ye
oe Sy te ay dele ob y ol 3 0550 Ys UR VP Oke!

16 Theories of General Principles

tollist case after case of sale and salar, along with the decisions of the
jurists when they differ. As the purpose here is not to understand the
cases but the use of principles, the detailed cases are being ignored.

‘There is a principle in the Qur'an that has not been mentioned
by al-Shaybini here, apparently on the assumption that the reader
is well aware of it. This principle is contained in the verse of the
Qur'an: “They say: bay‘ (sale) is the same as riba; but Allah has
permitted sale and prohibited ribé."™ Stated generally, the principle

Qur'an is treated by the jurists as A mur
Jmal word is in need of bayan ( first place this
elaboration is to be sought is in the Sunnah of the Prophet, It is
only when there is no explanation in the Sunnah that the jurist may
turn to an explanation based on the practices prevailing during the
Prophet's time, or to the literal meanings of the term in those days.
In the case of riba the tradition stated comes in and provides a veries
of rules, and along with a few other principles (not reproduced here)
it governs & major part of the contract of sale in Islamic law, If, how-
ever, we take a segment from the tradition and try to understan
it appears very ordinary if not meaningless. For example, take the
sentence, “Gold for gold, like for like, from hand to hand, and the
excess is ribd." Now, why on earth should two persons bring equal
quantities (like for like) of gold to the market place, exchange them
‘on the spot (hand to hand) and return home? This, however, is not
what the principle requires. On the other hand, it means: Do nor
XCHANGE GOLD POW GOLD, UNLESS fF 1S EQUAL IN WRIGHT AND 18 EXCHANGED
AT ONCE WITHOUT A DELAY, FOR OTHERWISE THE EKCIESS WOULD AMOUNT TO
ams. In other words, this tradition is not advocating a peculiar form
of barter, but is stating a principle,

‘The result of this principle is that one person cannot give to
another person ten pieces of gold, say, and take back eleven pieces
of gold (not like for like) after a year (not hand to hand), because
the extra piece would amount to ribd. This is clearly a transaction

Qur'an 2: 215
_“*Abdastis says: “It [riba] became like the rest of the obscure (muymat)
re in need of an elaboration (baysin). These are nouns that have been trans
{eom the language to the law for meanings to which they were not applied
lw he language... The Prophet (God's peace and blessings be upon him) pro-
‘Vided extensive elaboration of the meaning intended by AllAh in the verse by way
oCexplicit commands and as precedents Al-Jaasis, Abkam al-Qur'an, 1, 464-65,

‘Tueoates oF Istauic Law 167

of charging interest from another person and is prohibited in Islamic
law.

‘This, however, is not all that is prohibited by the Hanafite jurists,
who strive to achieve analytical consistency in the operation of these
principles. They read part of the principle, Do sor excuaNce GOLD FoR.
GOLD, UNLESS FT 5 KQUAL IN WEIGHT AND 15 PXCHANGED AT ONCE WITHOUT 4
petay, and maintain that a person paying ten pieces of gold to another
person and taking them back after a year is also indulging in ribd,
‘as the beneficiary is going to utilize the benefits of these ten pieces
for a year, which is an excess and, therefore, riba. This may appear
strange at first, because the transaction contemplated in this second
‘case is nothing more than an interest-free loan, which is not only
permissible in Islam but encouraged too. That is exactly what the
jurists intend by this prohibition. They want to relate the case of the
Joan (gard) to this principle by saying that its exemption comes from
the Qur'an and the person making it is consciously gifting away the
benefits of the ten pieces of gold, which would have amounted to ribé
in the absence of a conscious donation to the recipient for a period
of one year. The conscious donation of the benefits releases the hold
of the prohibiting principle. This is the reason why such a loan has
been called gard hasan (a gracious loan), This is what is meant by
checking “the remainder for logical inconsistency therewith." The
general prohibition of exchanging equal quantities of wealth with a
delay stands restricted in the case of the gard hasan,

‘What does this tell us about the of the Hanafi ju-
rists? It shows that they read the legal }, and instead of looking
for literal meanings first, they tried to discover or to formulate gen-
eral principles that would govern a majority of cases. After deter-
mining a broad principle, they would look for sub-principles, if these
were available. If there were exceptions or provisos to these princi-
ples, they would list them for the sake of analytical consistency, even
when they did not pertain to the case under examination. In this
particular case, the broad initial principle is:

All sales are permitted except those bearing ribé.

‘This principle is derived from the verse of the Qur'an. After this, they
derive sub-principles from the Sunnah. These sub-principles explain
the meaning of the term ribd mentioned in the Qur'an. We have
considered only two of these sub-principles. The first of these is:

“Pound, i, 73.

168 Theories of General Principles

Do not sell 10 pieces of gold for 11 pieces of gold with
a delay, because the excess is riba. If at all you wish to
exchange gold for gold, then, exchange 10 pieces of gold
for 10 (not 11) identical pieces, and this exchange is to
be from hand to hand (that is, spot).

‘This sub-principle prohibits what we call interest, It leads, however,
to the second sub-principle, which says:

Do not exchange 10 pieces of gold for 10 identical
pieces of gold with a delay, because the benefits to be
derived during the period of delay amount to ribé. If at
all you have to exchange 10 pieces of gold for 10 identical
pieces of gold, you must do so at once, without delay.

This principle prohibits the granting of a loan or gard without in-
terest. In other words, this principle refuses to recognize a loan as a
valid transaction, unless the lender declares openly that it is a gard
‘hasan, that is, a gracious loan in which there is a conscious gifting
of the benefits by the lender. The reason is that the benefits passed
‘on to the borrower for the period of delay amount to an excess (fad!)
of ribé, The only way this would be legalized is if the lender makes
a gift of these benefits to the borrower. Here we may ask: What is
the difference between an interest-{ree loan and a gard hasan? The
answer is that in a gard hasan all the conditions imposed for a gard
hasan will apply, and not those imposed by the money-lender, For
example, one condition is that you cannot fix a period of delay; it
has to be left open, This is how analytical consistency ix maintained
by relating all principles and exceptions.

‘A few examples showing the clash of general principles with tra-
ditions will be helpful in further understanding the methodology of
the earlier jurists.

A well-known case in Islamic law is that of dogs, cats, and beasts
of prey licking a water-utensil. The tradition about the dog is related
from Abi Hurayrah, and is considered authentic by the jurists. The
Prophet is reported to have said; “If a dog licks a utensil belonging
to one of you, he should purify it by washing it seven times.” In
some versions it is said, “The first time with dust,” and in others,
“Cover it the eighth time with dust." The tradition about cats is

“*Iba Rushd, Bidayat al- Mujtahed, i, 21-22.

‘Theories oF Istawic Law 169

related by Qurrah from Ibn Sirin from Ab’ Hurayrah, who said, “The
Messenger of Allah (God's peace and blessings be upon him) said,
“The purification of a utensil, when a cat has licked it, is to wash it
once or twice.’” Qurrah is a trustworthy narrator according to the
traditionists."” The beasts of prey are mentioned in the tradition of
Tn ‘Umar from his father, who said, “that the Messenger of Allah
was asked about water and about the leftover of beasts of prey and
other animals, He said, xs, ose Yencer. 9 ences <oam Rive euler & Ses
not retain impurity.
Malik held the view that water leftover by a dog is to be spilled
and the utensil is to be washed, but not for the number of times
mentioned in the tradition, for the water the dog has lapped up is
not unclean. He did not require the spilling of things other than
water, which a dog had licked. The reason he gave was that the
tradition opposes a general principle of the Qur'an, *So eat of what
they catch for you."® By this he meant that if a dog is considered
unclean the prey it catches should also become unclean by its touch
or its saliva. He also supported this interpretation by saying that
number is not a condition in the washing of unclean things, He held
that this washing is merely an act of worship. He did not rely on tl
remaining traditions as they were weak in his view, The net =)
is that he did not follow the complete implication of an authentic
tradition when it opposed a principle of the Qur'an. _
Abe

animal in this eae is related to the permissibility of its flesh. If the
flesh of these animals was permitted for consumption their leftovers
were also taken to be clean.

AL-Shafi'I following the literal meaning of the tradition considered
the dog and its leftover to be impure. Ibn Rushd tries to give a
justification for this by saying that perhaps he (al-Shafi'i) meant
that the uncleanliness lies in the saliva of the dog. He then quoted
an opinion of Ibn Rushd, his grandfather, that the tradition could be
contemplating rabid dogs. This was objected to on the ground that a
rabid dog usually shies away from water. He then proceeded to give
his own justifications to find a rational basis for the tradition.

We see here the two Fists i i individual

rations when prepa prger or capa “an, or
ey general principles derived from a number of sources. Al-Shafi'i,
on the other hand, finds no difficulty in restricting the general prin-
ciples with the individual narration as the general principles are not
definitive (gat't) in his view. An individual narration (thabar wahid)
is sufficient to restrict the meaning in the Qur’an.”?

About Abi Hanifah's method, Ibn Rushd has the following to
say:

‘Abs Hanifah upheld, as we have said, the uncleanliness of the
leftover of » dog, and did not deem number to be a condition
for the purification of the utensil licked by the dog, as this ia
‘opposed, in his view, by analogy arising from (the principle of]
the washing of unclean things, that is, the point considered here
is the removal of filth alone. This conforms with his practice
of rejecting individual narrations when they are opposed to
Principles. ‘The Qadi (Ibn Rushd) said, “He, thus, used » part
the traditions and did not employ others, I mean, he used
‘out of them that did not conflict with the principles,
‘and he did not use those that clashed with the prisciples. He
supported this with the amertion that it was the opinion of
‘AbG Hurayrah, who had narrated the tradition,"7*

This clearly explains ‘ and the
accommodation of minor ‘
In another case the Hanafites quote a number of principles
to evade the literal implication of a tradition in order to maintain

"For the details of this opinion see al-Shasi, al- Risslah, 556-56,
bid. 1:22

PERE Fo all fy NS eh UU ud ee TU,
ON gale het fab phat nate i ae VS ay sill UY
Rojee GR EH ASTS, j cole Ye Lag, Aad Onell Thy ga M2] Ud call
Al May Jat fy ne ea Un ge Jot: ell JO. get
ws eg pe ce coke a Jane Jy Soars alas Jc Sl

Seidl sa, silliza shake ol

Turoniss oF Istamic Law im

analytical consistency. This is the case of the return of a commodity
by the buyer due to a defect. Malik and.al-Shafi'i consider tasriyah
to be a defect in which an animal's milk is blocked by the seller in
the udder for a number of days so as to give the impression that
the animal yields a substantial quantity of milk. These two jurists,
who are counted among the Abl al-Hadith, rely on the well-known
tradition of mugarrgh. This is the saying of the Prophet, “Do not
block the milk of camels and cows (to cheat in sale). If one does this,
then, the buyer has two options, either to keep it (the animal) or to
return it along with a sé‘ of dates.”” They said that the option of
returning the animal is granted to the buyer because of tagriyah, and
this indicates that it is an effective defect. Further, they maintained
that the seller in this case is a swindler, which in itself becomes a
defect similar to all other admissible defects. They apply the tradition
in its literal sense. The Hanafites do not, Ibn Rushd is quoted again
to explain what the Hanafites say:

‘AbG Hanifah and his disciples said that fagripah ia not a de
fect because of common knowledge that whoever buys a goat

and discovers later that its milk is not much, cannot designate

it aa a defect. They also said that the tradition of muparréh

does not obligate practice due Lo its deviation from general

principles. Tia deviation from principles is (seen) from differ-

‘ent aspects. Among them is ite conflict with the saying of the

Prophet (God's peace and blessings be upon him), “(Right to)

profit is through corresponding, liability for lows.""? This is)
a principle agreed upon. Among them is also its conflict with
the prohibition of selling food for food with a delay, which is

not permitted by agreement (of the jurists). Further, (compen-

sation in) perishable property is undertaken through payment |)
of its value or its like, and granting a sa‘ of dates as com- |
pensation for milk is neither of these. Moreover, there is an |
exchange of an uncertain quantity of food, that is estimated

(juzaf), with one of known measure as the milk with which the

selier caused a deception is of an unknown quantity and, fur-

ther, it can sometimes be more and sometimes less while the

compensation here is fixed.”*

“ibm Rushd, Bidéyet ol-Mujtahid, i, 132,
This principle governs « large number of cases im islamic law
"Ibo Rushd, Bidayot al Muytahid, i, 132:

in or ee

We have tried to show through these few examples that the

‘fae tind Lacan radar Thefts sate oot
‘method, y, These jurists usually |
gal principles as the jive starting point for legal reasoning
from which [t! of decision by deduction."”* Their
method was not based upon their own whims or fancies as the term
ra'y, when misunderstood, as it usually is, might indicate. The pic-
ture painted about their methods by the later Shafiite jurists and
traditionists, and as recorded by Goldziher, is certainly not true.
Their methodology may not have appealed to the Ahl al-Hadith,
but it was certainly one that would appeal, under the given circum-
stances, to the judicial mind, even today.

‘As further evidence, we may mention oe comoliaicns ct a,
Karkhi and al-Dabdst on the principles used by the Hanafite 78
Al-Dabisi lists seventy-five principles over which there has been dis-

ent within the Hanafi school or between the Hanafi school and
other jurists. Al-Karkhi lists forty-one principles. Some of these prin-
ciples are principles of interpretation, but they are mostly principles
of law, Even al-Shafi'T has been shown to be using some principles.

Shifi'! disagrees: “The entire world according to us (Hanafites) i
divided into two worlds (the Dir al-Islam and Dar al-Harb), but it
‘one world according to al-Shafi'.” A number of rules are then listed
as flowing naturally from the positions taken by the two schools,

SAI] LIYE oF J GUID Ke pall can: lee tie gil Uy
wee Vol et pall eee Wn ri alls oT LG Ga @ Ad BL
he Agi paw CTA: agg oe Je Gilie oT sigs yee otal gle
Cet Raylae linge he See al gaye Oley Cll y eddy FDL!
9 gall UML Jo ol Gang BU, 5g Y igs Thal play Lab oe
hs Dae lable age ie My SS al onl GA ye Ee lls 9 HL
OU Lily alll pple ad BUN gy lo gill onl OV pglall LEI OLA
~ age en pally: AL 5 Sie

"*See the methodology of the analytical jurist, as expounded by Roscoe Pound,
under section 10,2.

"*ALDabist, Tu’ al-Nazar (Cairo, al a) 1-78, followed by al-Karkht, Risdlah
Ji al- Uyal, 80-87, with comments by al

‘Tueontes oF Istauic Law 173

‘Now that the use of the principles by the Hanaff schiool has
been understood, we may identify some of the broad features of the
Hanafite theory. The details will be elaborated further in the next
chapter when a comparison is undertaken between the theories of
general principles and the strict theories.

10.3. Main features of Hanafi theory

legal theory revolves, as we have tried to show, around

general principles. The first task for the Hanafi jurist,

when he is faced with a new case, is to see whether this case can
be accommodated ‘a general principle. If the case is covered
directly by a principle, the jurist finds no difficulty in assigning to.it
the hukm of the governing principle. If the case does not fall under
‘one principle, the jurists would try to accommodate it under another
principle. A principle that governs a case may itself be a sub-principle
of a wider principle, or even be an exemption from it or a corollary.

‘The question is, where does the jurist find the principle? There
are different ways of arriving at a principle.

‘The principle may be stated explicitly in the Qur’in in general
terms, like the principle governing sales and ribd, as in the preceding —
example: “All sales are permitted except those bearing ribd.” Again
it may be expressed in an authentic Sunnah, like the principle: “All
entitlement to profit (khardj) is based on a corresponding liability for
bearing loss."*7 Sometimes the principle may be derived from a large
number of cases already settled by the law, like the general principle
derived by Ab Hanifah in the case of animals making the water
filthy. By observing that most of the animals whose touch makes
the water filthy, for ritual purposes, are those whose meat is also
prohibited by the law, he said that the hukm in such cases depends
‘on the permissibility of the flesh of the animal.

‘The derived principle is sometimes framed by the jurist himself
and sometimes it has been framed by a jurist before him. Is it binding
upon a jurist in a later generation to maintain the principle adopted
by a jurist in the previous or earlier generation? In the Hanafite sys-
tem, it does appear to be binding, or is at least a practice of the
school. Consider the example of riba that has preceded. The prin-
ciples upheld by Ibrahim al-Nakha‘T are recorded and followed by

mole clat

174 Theories of General Principles

al-Shaybani and the other jurists in authoritative way. In this partic-
ular case, these principles have been derived from traditions narrated
by ‘Ubadah.ibn al-Sdmit and others, but al-Shaybani attributes them
to Ibrahim al-Nakha'i. Thus, the system of precedents and that of
maintaining a prior principle and decision appears to work in the
Hanafite system.

Do the principles stated in the texts have the same strength as
those derived by the jurists? Certainly not. The derived principle
is lesser in strength than a principle stated explicitly in the texts.
There are, however, fig that principle. The
opinion of a Companion is binding in system, as has
‘been emphasized all along. Thus, a principle derived and maintained
by a Companion has greater strength than a principle derived by a
later jurist,

‘There is yet another way of lending greater validity to a principle
derived by a jurist. This is the method of ijma’ (consensus of opin-
jon). Much has been written about ijmd’ as a source of law. Some
scholars after having undertaken extensive research have concluded
that ijmd* does not appear to have a very significant role to play in
Islamic legal theory. The general idea is that ijma’ is not a compiled
source like the Sunnah, though it has also been transmitted through
generations. It can only be gathered from the manuals of figh pro-
duced by different schools. In certéin cases, the claims of ijmd’ in
different schools may conflict or be completely different. [jmd‘in the
Hanafite system appears to be a general agreement over a principle or
rule of law. The transmission of these principles within the Hanafite
‘system may be compared to the upholding of the precedents of the
superior courts—the system of stare decisis. In certain cases, these
decisions may be overruled.

Some Western writers have tried to portray ijmd‘as some kind of
clever device through which the Muslims have tried to authenticate
part of their law as well as religion in general.”® This view is based on
‘a misreading of the function of this principle. In the common law or
in Western systems based on it a principle upheld and maintained by
‘@ superior court becomes binding on the lower courts. Why should
this be a big problem for Islamic law? A principle upheld and main-
tained by a number of jurists in a certain age becomes binding upon
later jurists. If the principle was upheld unanimously it is binding
‘and cannot be overturned. Thus, a derived principle approved by

See, 4, Noel J. Coulson, History, passim.

Tueortes oF IsLawic Law 175

ijmd* can attain the same strength as a principle stated explicitly in
the texts. % method of authenticating and vali-

Pie or pe a It is, however, exclusively a judicial
function, and extending it to politics or theology may be possible,
but is not what was intended by the jurists, whose definition of the
principle excludes all such meanings.

This, then, was the methodology that has been termed as ra'y by
those who criticise the Hanafites. It may appear difficult to under-
stand why, because this is qitite similar to the method that is used in
the courts of law today. The allegation of the use of ra'y appears to
be based on a popular mood or feeling rather than on a sound legal
basis. This will be explained when we introduce the strict theories of
interpretation in the next chapter, To end this chapter we may list
some of the main features upon which the Hanafi theory relies:

1, The definitive nature of the general word (‘dmm) upon which
the general principle is based.

The use of the general principle as » proposition from which
Jegal reasoning is to proceed and the law is to be extended.
The principle may be stated explicitly in the texts or it may
ie by jurists from a number of cases already settled by
u A

The opinion of a Companion from which the idea of a precedent
in derived and which is used to strengthen a general principle.

4. Ijma'or consensus of opinion which is used to secure a definitive
status for a principle that has otherwise been derived and is not
stated explicitly in the texts.

5. The implication of a khabar when
ite | principle cannot
be restricted by it. The report in such cases is usually assumed
to apply to some other case.”

These features of the Hanafi theory led to the rapid develop-
ment of the law through the use of the flexible general principles.
‘The use of the general principles also enhanced the internal consis-
tency of the system. This striving after consistency indirectly served
as a method for warding off or evading the effect of traditions that

S

s

See the examples and the views of Ibn Rushd listed in section 10.2,

176 Theories of General Principles

were either weak or weré inconsistent with the overall system. The
method focused no less on the text of the tradition than on its chain
of transmission. [t even permitted the use of some traditions with
weak isndd when their text conformed with the general principles,
because in such a case the meaning was already included within the
implication of the principles. Had these weak traditions not been
there, the meaning could have been derived directly from the princi-
ples through deduction. To those who gave more importance to the
chain of transmission of a tradition rather than its content, this must
have appeared to be a strange situation, that is, rejection of a tradi-
tion with a sound chain sometimes and acceptance of a tradition with
a weak chain on other occasions. The goal, however, for the Hanafis
was analytical consistency and the pre
‘The other major point pertains to the in.
We have seen that when an opinion of a Companion existed on a
certain issue, for the Hanafis it was the opinion of the Companion
that determined the meaning of the texts. The assumption was that
the Companion with his better knowledge knew what the meaning
was in such cases. The , most probably, considered
this to be a preference given to the opinion of a Companion over ~
Sunnah of the Prophet, as they took the position that it was ;
Sunnah that was to determine the meaning of the Qur'an; if '*
the opinion of a Companion conformed with the Sunnah it was to be ~
' accepted, but if it clashed with it, such an opinion was to be rejected,
The result of such a methodology was that the traditions based
on individual narrations were not literally. They were checked
t the general principles, and if found to be consistent with them
they were accommodated, otherwise they were assumed to apply to
“some other case, not the one covered by the general eee as va
“oy Played. jitch the position around ing
principles When the general principle was
the indi narration had to be applied irrespective of
its content, as long as its chain of transmission was complete. If such
a tradition opposed the general principle, the principle was assumed
be restricted to the extent of the i
The methodology of the Hanafis was, therefore, based on certain
_ major assumptions that had a significant impact on the outcome of
the final opinion, as well as on the manner in which the sources were
utilized. We will see in the next chapter how al-Shafi'f restricted or
modified each one of these assumptions in his new theory of inter-
pretation.

Chapter 11

Theories of Strict
Interpretation

‘The struggle between the Ahi al-Ra'y and the Abi al-Hadith in Is
lamic law is actually @ straggle between judge-made law and literal
interpretation of the statutes or texts. It is a struggle that appears
to have existed in every legal system, and it certainly exists today in
Western legal systems. To the layman, or even to some lawyers, the
judge appears to be Ingislating when be is using general principles of
the law. He appears to be taking over the function of the legislature
instead of discovering and applying the “intention of the the found-
ing fathers” of a constitution or the intention of the framers of the
law. In fact, the views of the Realists indicate that the judge uses his
Cuneainice eSB op sonrictioes, snd he stasvto¥s f Bit
consequence. Thus, in a way the methodology of the judge according
to the Realists is based on ra'y (personal opinion) rather than on the
statute. In Islamic law too the developments were similar.

Ifa layman looks at opinions in the cases discussed in the previous
chapter, where the jurists applying general principles appear to have
ignored or rejected authentic traditions, and if the reasoning behind
‘these opinions is not explained to this layman or is not understood
by him, he will most likely believe that his religion is being distorted,
or the law of Allah and the commands «f the Prophet are not be-
ing followed. This appears to have happened early in Islamic law.
The movement of the Ahi al-Hadith could have been associated with
political petoling the Hanafis have
generally been. partof the zuling circles. reonctuded from
the appointment of Aba Yasuf, the disciple Of Abi Hanifah, as chief

178 Theories of Strict Interpretation

judge by the Abbasids.' The resentment in some quarters against
these jurists must have been quite strong when al-Shafi'l appeared
on the scene.

If the movement of the Ah! al-Hadith meant the complete dom-
ination of literal application of traditions, whatever their authen-
ticity or strength, then, al-Shafi did not support this movement
completely. He provided a barrier between the earlier jurists and the
‘extremist element of the Ah! al-Hadith. A brief explanation of what
al-Shafi't did, when he expounded his new theory, will confirm this
fact,

11.1. Modification of existing legal theory by al-Shafi'T

To distinguish between the methodology employed by the Hanafis
and that formulated by al-Sh&fi'l, we shall focus on those points that
have been listed as the foundation of Hanafi method. These distinc-
tive factors are: the use of the general word to convey a definitive
(gat‘s) implication; the use of the general principle as a starting point
for legal reasoning; the opinion of a Companion; the use of ijma*
(consensus of opinion); and the non-acceptance of the khabar wahid
in certain cases, when it opposed the definitive general principle.
wi major issue from the point of view of the Abl al-Hadith
individual narrations were
Coteelet by the earlier schools, when they opposed a definitive
general principle, This gave the impression that the earlier schools
or jurists were not granting the Sunnad its proper status as a source
of law. We have already shown that the Hanafis and sometimes the
Malikis used general principles to check the authenticity of a tradition
reported through a single Companion in the first generation. This,
then, became a primary goal for al-Shafi‘t, that is, to secure a status
for the khabar wahid that would ensure its acceptance without any
qualification of restriction. To do this he had to demolish the position
taken by earlier jurists on each of the listed points, as all those poiuts
are related either directly or indirectly to the acceptance of the khabar
wahid.
‘The genius of al-Shafi't lies in the recognition of each of thése
points in the methods of earlier jurists, especially in the Hanafi
method, and in systematically opposing each point. By doing this

“It is im thie capacity that be wrote his well-known book Kitab al-Kharaj.

Tweories oF Istauic Law 179

he developed his own theory. Why did al-Shafi't do this? Did he con-
sider the methods of the earlier jurists as irrelevant for Islamic law?
Perhaps he did, but there must be some deeper underlying reason.
‘The answer has been provided earlier, serortrane pepe ssh
detail later in this chapter,

wat. ‘The Sunnah governs the meaning of the Qur'an
The first ving alShafi'T did was to secure a dominating status for
the Sunnah, as compared to the general principle or the opinion of
Companion. This he did by asserting that the Sunnah governs the .\\"
meaning of the Que'én. It is couched in the proposition: al-sunnah
-al-Qur'én, that is, the Sunnah is the decisive authority,
the meaning of the text of the Qur'an.* Thus, if t!
opinion of» Companion existed about a text of the Qur'an, and ¢

meaning differed from the-explanation of that mea Oe in the Sun
the m in the Sunnah would be given preference. The opinion
== be assui —— aes A

the Qur’én (that is, in cases where the meaning in the Sunnah was
different from the is; tion in the opinion): >

What if the opinions ‘Companions, or of a majority of
them, converged on a point, that is, there was a consensus of opinion
(ima)? AL-Shafi't did not reject outright such an opinion, but he
denied the possibility of such an occurrence ini practice. He gave a
number of arguments in his book al-Risdlah.? It is important to note
that here we are not considering the view of the later Shafi jurists,
who accepted the principle of ijma’, in a different form, a form almost
the same as that of the Hanafis, because of which Western writers
have been Jed to believe that there was a “common legal theory.”
The truth is that ijma‘ as such does not fit in well with Shafitite
legal theory, and we find the later Shafi'ite jurists using ijmd‘ to
support an occasional underlying cause (‘illah) determined by them.
In the Hanafi system, discussed in the previous chapter, we saw that
the doctrine of ijma‘ had a very positive role to play; it was used to
render a general principle definitive, which could not be restricted
by a probable (zann#) source.

This is the major thesis of abSha6''s work,
*See al-Shafi't, of-Resdlah, 471-77.

180 Theories of Strict Interpretation

The assumption that the Sunnah governs the meaning of the
Qur'in could only be true if the Sunnah could restrict as well as
enlarge the meanings found in the Qur’an. Restriction meant the
restriction of a general word, while expansion or enlargement of the
meaning meant what has been called ziyddah ‘ald nas or an excess
over the meaning in an existing text. We shall not discuss the latter
issue in this book, as it will involve us in too many details and relegate
the larger, more obvious, issues to the background. Those interested
can trace it in any book on uyil, once the main points have been
grasped.

Let us now move to al-ShAfi''s views on the general word through
which the commands or proscriptions are expressed.

11.1.2. The general word and the general principle
‘As has been stated earlier t! ule

yah, used by the -
SSS ‘This was taken to be definitive (gat't) by them, so
that an individual narration, the implication of which was probable,
could not restrict this general principle, and the general principle
was given preference over such a tradition. As long as the general
word was treated as definitive, the strength of the individual narra-
tion could not be asserted in comparison. The first task for al-Shafi's,
therefore, was to demolish the strength of the general word, This he

did in his thorough and systematic fashion. He a
general word never includes all its ed
at the time of the initial application.‘ Another rule with the

was that t) general word was definitive, once it had been
restricted by a strong evidence it became probable and could now be
restricted by any evidence, even an individual narration. In other
_ words, the Hanafis maintained that the general word was like a closed
room containing its categories within it. The door to this room could
only be opened by a strong key, the restricting evidence, which could
then enter the room and remove one or more categories from it. Once
this door had been opened by a strong evidence or key, it could not
be closed again and even weaker evidences could enter the room and
remove individual categories. Al-Shafi'T maintained that though this

‘hid, 369-87.
‘This is not an unrestricted principle with the Hanafts, because in certain cases
hey may use the individual narration,

Tueontes oF IstaMic Law 181

room, the general word, initially included most of its categories, the
door of this room was never closed. A zanni evidence could enter it
with ease and remove individual categories.

11.1.3. The need to strengthen the thabar wahid

Once al-Shafi't had accomplished this he concerned himself with the
minimum standards for a probable evidence.* The Hanafis, it may
be mentioned, sometimes accepted weak traditions when they were
compatible and consistent with the general principles. They could
also accept the weak traditions when a general principle had been re-
stricted, that is, rendered probable, as long as this tradition presented
an advantage and did not disturb the overall analytical consistency
of the system. bard benatoas, gepccony apocryphal material was
propositions of the law,

tency. If, however, the chain was defective or unsound, the tradition
was to be rejected irrespective of its content. Why should he have
done this? It is possible that a tradition with an incomplete chain
could still be authentic. Al-Shafi't laid down these rules for two possi-
ble reasons, First, that weak traditions sh able to restrict
general rules, which he had now and easy to re-
strict. Permitting weaker traditions could have meant disaster for his
theory as there was no protection for the general word, as could be
found in the Hanafi system. This would also enable certain jurists
with strong literalist tendencies to erect the law on the basis of weak
traditions and put an end to its consistency. The second reason was
that there should be some protection against fabricated traditions,
In the Hanaff system the safeguard was the general principle it-
self. There was an emphasis in that system on the text and content
of the tradition rather than on its isndd. If a tradition clashed with
a general principle and it was an individual narration it could be re-
jected for opposing the principle. If it was consistent and compatible
with the principle, accepting it would do no harm. This protection
had been removed from the proposed Shafitite system. Al-Shafi'i,
therefore, laid down the rule that a tradition with a complete isndd
had upon even if it restricted a general word, but a tradi-

*ALShafit, al- Risalah, 369.

182 Theories of Strict Interpretation

11.1.4. The opinion of a Companion

Another point that al-Shafi‘T had to deal with was the question of
precedent. The Hanafi jurists tried to maintain the general principles
and even decisions handed down to them by earlier jurists. This was
linked to the opinion of the Companion of the Prophet (gaw! al-
sahdbs). They maintained that it was binding upon them to follow the

,, opinions of the Companions. A principle maintained by a later jurist
could usually be traced to a Companion. In the first example quoted
in the previous section, al-Shaybdn! relates principles from Ibrahim
al-Nakha's. It would be understood, if it is difficult to verify, that

s* those principles would be attributed to Ibn Mas‘dd, a well known
jurist and the Companion of the Prophet, or to another Companion,

* "Phe assumption was that the Companion was in the best position to
know the actual state of the law as laid down by the Prophet. Thus,
..a later jurist would be under an obligation to maintain the principle
or decision and not overturn it, just as a single judge today may not
be allowed to overturn a rule or principle established by a full bench

or a higher court.
ALShSAT ll Sadi wink gration for his new theory sim-

ilar to that of the general word, especially when such a rule was
claimed to be agreed upon generally by the Companions, that is, it
was based on ijmd‘ (consensus of opinion). He stated that the opin-
jon of a Companion may be accepted, but it was not binding on a
jurist, especially when it opposed an established Sunnah, even that
contained in a khabar wéhid.'° Hie also declared that the possibil-

ly of the occurrence of ijmd' of the Companions was rate, if not
epee ‘Thus, if the He jaintained that the Qur'an and
the Sunnah would be iples es:
tablished by the Companions, as they were in a position:to know
better the true intention of the Lawgiver, al-ShafiiT maintained that

é

"Tid.
“The principles attributed to Tbrahim al-Nakha'y, in the case of rsbé above, are

found in traditions, expecially those related by ‘Ubidah ibm al-Skmit and Sa’td
abKhudst

"ALDabest, Ta’sts ol-Nagar, 21
*ALSbaS‘T, al-Risdlah, 476-17.
“bid. 475,

‘Tueortes oF IsLaMic LAW 183

of the Companions would be interpreted

This is exactly what is meant
by the phrase al-sunnah gadiyah ‘ald al-Qur'an (the sunnah governs
the meaning of the Qur'an). This he explains in his book ol-Risdlah,
and has been discussed above.

Let us illustrate this through an example. In the case of unlawful
sexual intercourse discussed above, the Qur’ln, as restricted by the
Sunnah, lays down the penalty of « hundred stripes for an unmar-
tied person, that is, one who is not a muhgan. This is accepted by all
the jurists. In addition to this, the Sunnah in an individual narra-
tion (khabar twahid) prescribes the penalty of exile for one year. The
Hanafis accept the tradition as authentic, They maintain, however,
that two Companions of the Prophet, ‘Umar and ‘AN, may Allh
be pleased with them, sometimes awarded this additional penalty of
exile and at other times they did not. This shows, they say, that t!
penalty prescribed by the tradition ix not hadd (a fixed penalty), but
ta‘sir (discretionary penalty); that is, it is not fixed bat depends on
the discretion of the ruler. The ruler may choose to award it some-
times, as an additional penalty, and at other times he may not, The
Hastafis conclude from this that though the tradition mentions this
punishment along with the penalty of a hundred stripes awarded as
hadd, the Companions with their superior knowledge of the texts
and the laws knew that the penalty was prescribed as ta‘sir. As the
opinion or decision of » Companion is binding, the Hanafis consider
this penalty as ta‘sir. For al-Shafi', the opinion of a Companion is

accept it. In this case, therefore, al-Shafi's considers the additional
penalty as part of hadd, to be awarded all the time with one hundred
stripes, He does not take the opinion or decision of a Companion
Into account in this case, Thus, the Sunnah governs the meaning of

the Qur’in here by expanding its meaning to include the penalty of

exile, and the opinion of the Companions is not considered binding
in this case.

It is well known that al-Shafi'T accepted giyds (analogy) as a source
of law, and insisted that it is giy@s alone that is ‘itihad.'? He rejected

te

"bid, 477. d KS

184 Theories of Strict Interpretation

istihsdn used by the Hanafis as being null and void."? It may be noted
here that the Malikis also used istthsdn as a source or principle for
deriving the law. ASAIN 0 Sets Se een
important to note that giyds has

in different ages, and the ‘iption pape
ter by al-Ghazali, for example, does not conform completely with
what al-ShafiT considered to be the valid modes of giyés. Qiyds is
a somewhat complicated principle, and some of its intricacies shall
be explained in the next chapter. For the present we may note that
al-Shafi'l considered two types of giyds to be valid. We may recall
what we said about this as was stated in an earlier chapter.

ALShafi'l stated explicitly in his books al-Risdlah as well as in al-
Umsm that giyds is of two types: qiyas al-ma‘nd and qiyds al-shabah,
He said:

Qhyds is undertaken from two aspects. The first is when a thing
is included in the meaning (ma'nd) of the axl There in no
disagreement about this. [Then] theré may be a thing which
hhas some similarity to thoes in the sources, It is, therefore,
associated with the one closer to it or greater in similarity

(shabah)."*
Now ‘as described by al-Shafi and later even by
al-Ghaaall i ‘literal method, The example given earlier

was that if the text uses the word “fie,” other more grievous acts are
included through giyds al-ma‘nd.!> The Hanafis consider this as a
literal method and call it daldlat al-nags, that is, the implication of
‘Uhe text. The other type of giyds considered to be valid by al-Shafi'T
is qiyds al-shabah, The examples he gives are of a person trying to
determine the direction of the giblah in the desert, say, on a dark
night. This is éjtihdd according to al-Shafi't. The question is whether
the person undertaking this ijtihéd has to be a jurist, an astronomer,
or some other kind of expert? Another example is of a person in a
state of ihrdm hunting an animal. This is prohibited. If he does hunt
an animal, say an ostrich, he will be required to deliver for sacrifice
a similar (mith!) animal as atonement for his offense. Determining
what is mithl is considered ijtihdd by al-Shafi's. Here again we do not

"bid. S03

“Ibid. 479.

"The Qus'k says with respect to parents: “Say not 'Fie’ unto them nor repulse
them, but speak to them a gracious word.” Qur'an 17: 23.

Tueorigs oF Istamic Law 185

need a jurist to settle the matter, but an expert on the attributes
of animals. This kind of ijtihdd was later called tahgig al-mandt, or
verification of physical attributes in a new case, by later jurists like
al-Ghazali. All the cases mentioned by al-Shafi't in al-Risdlah, even
the case of ribd, can be accommodated under these two methods,
and that is what al-Shafi does. Thus, al-Shafii neither mentions
qiyds al-‘illah in his book, nor does he give explicit examples of it
ete st ih, snake by terntsng the enderzing cee the
used by Muslim jurists, and this method was

form after al-Shafi't.
It appears that the later jurists of the Shafi'i school attributed
to him the method és al-‘illah as well as that of ikhdlah by
stretching some of discussed by him in al-Umm. Al-Shafi''s

additional methods, What is giyés al-‘illh, as distinguished from
qiyds al-ma‘nd will be explained in the next chapter when we discuss
‘the theory proposed by al-Ghazall,

[fit is true that al-Sh&fit himself accepted only these two methods
of analogy, regardless of what his followers attributed to him, then,
al-Shafitl's theory is even more strict than what it appears at first
sight. It becomes a theory that is more or less literal.

We may now turn to some of the other strict theories in Islamic
law, and examine their main features very briefly, because they do
not differ much from al-Shafi'i's theory.

11.2. Zhiri and Hanbali theories
AL-Shafit's views did not satisfy the Abl al-Hadrth completely. Soon

the school comes from Ibu Haxm and his works. The views of this
school have been recorded in considerable detail by Goldziber."® This
school became extinct over time because of its extreme views. Some
of the interpretations of this school, however, have great merit. When
the system of interpretation of this school is considered as a whole,
and not as a mere deviation from al-Shafi''s views, it represents a
new theory in itself; a theory that works without analogy.

“See generally Goldsiher, The Zahirts.

Khor

186 Theories of Strict Interpretation

One interesting approach of this school can be witnessed in the
situation when two conflicting texts cannot be reconciled and their
conflict cannot be resolved to obtain the hukm. The position taken
by the school is that there is no hukm in this case. The matter is just
suspended. This may sound unbelievable to some, who are accus-
tomed to thinking that the judge must provide relief to the parties
in each case, but it is typical of jurists dealing with the essential core
‘of the law derived directly from the texts. There is no obligation to
reach a verdict, because the jurist is willing to go only as far as the
texts will take him. The rest of the issues are left to the flexible part
of the law, that is, to the imdm and his ijtihdd. The jurist is under no
obligation to stretch the meaning if it cannot be discovered directly
from the texts.

‘This school was followed by the Hanbaly school, whose founder,
Abmad ibn Hanbal, was essentially a traditionist. His school gives
preference to traditions over analogy, by using conditions for tradi-
tions that are less stringent than those stipulated by al-Shafi'l. As
Imm Abmad ibn Hanbal, the founder of this school, was involved
more in the work on traditions, his views on the law as well as on legal
theory were collected later by his pupils and transformed into a the-
ory. This theory does not differ too much from the theory expounded
by al-Shafi'y, except in details. The only major difference was in the
somewhat relaxed conditions for the acceptance of traditions. With
the preference of these traditions over analogy, this theory appears
‘even more strict than that of al-ShAfi', yet surprisingly Hanbaly law
in some cases may be found to be more liberal than that of the Shafi
school.

Turning to what the above analysis reveals to us so far, we find
that the influence of the Ahi al-Hadith that appears to have started
much earlier!” continued even after al-Shafi'y 's time, The Hanaff
school had no option but to lay down a system through which the

i of the schools would be followed. This is a complete hier-
archy of classes of jurists beginning with the mujtahid mutlag (the
absolute jurist) at the top, that is, Abi Hanifah. Following him is
the mujtahid ff al-madhhab, a status granted to Abi Yasuf and al-
Shaybani. Such a jurist performs taglid as far as the principles of in-

"The clearest evidence of this influence is'-Shaybint's book Kitab al-Hujjah
‘ala Abi al--Modinah, in which al-Shaybial tries to defend the use of traditions by
hin school. Incidentally, Schacht said that be could sot consult this book while
facmalating ho views la hin Origins af Muhommeden Jorepradence, bars of
the war. One wonders why he did sot do ao afterwards,

Tusonies oF Istamic Law 87

Figure 11.1: The Hanafi Method

[ase]

Ivrenpagrep Ruue

terpretation are concerned, but derives the opinions independently,
As we go down the ladder, we arrive in our own times at the jurist
who is hardly better than layman, Similar grades are also found in
the Shafi't school.

‘The influence of the Ahi al-Hadith continues even today, though
it is not very clear what it means in modern times, as far as the law is
concerned, It is for this reason that modern scholars are demanding
the derivation of general of the shari‘ah, so that the flexi-
bility of the system witnessed in the earlier age can be restored, This
demand is not new as outstanding jurists ayn
(al-Juwayni) and al-Ghazall had the end of
the fifth century of Islam, as we shall try to assess in the next chap- |
ter. Al-Ghazall's theory was possibly the last comprehensive theory \/ ~
of interpretation propounded in Islamic law.'®

If a general tren@ is to be determined in the light of what has
been said above without taking into account the two spheres of the
law explained earlier, the conclusion would be that the increasingly
literalist tendencies led to cessation in the growth of the law and
ultimately to rigidity. Such a conclusion is drawn by Western writers.
If, however, the idea of the two spheres of the law, the fixed and the
flexible, is kept in the forefront, it would be easy to see that the role
of legal theory changed with the passage of time. The Hanafi and

**Joriata like tbe Rusbd and al-Shatibt may also be said to have provided some
independent ideas, if not independent theories.

188 Theories of Strict Interpretation

Figure 11.2: The Shafi‘ite Method

pare si

Maliki theories developed in the earlier period when the distinction
between the fixed and flexible spheres was not clearly visible. Once
this distinction emerged, separate theories were developed. Thus, the
strict theories are designed to serve the fixed and eternal part of the

We shall now turn to this theory.

Chapter 12

The Theory of the
Purposes of Law

ALShAfi'T died at the beginning of the third century of the Hijrah.
He had proposed a strict theory of interpretation, as we have seen
in the previous chapter. His proposals were followed by two main
theories that reflected an even greater inclination toward strict or
literal interpretation. From the time of al-Shifi'i’s death up to the
‘ond of the fourth century, or the beginning of the fifth century, we
witness a period of relative quiet. The jurists were active, but their
activity appears to be an assessment of the main theories of inter-
pretation. Slowly, the extreme literalist views were weeded out, The
‘Pahiri school became almost extinct, except for some parts of Spain.
The Hanbali school also faced total extinction, and was to be-revived
later by. ny vaiyah.

AlShafi'’s theory, being less strict than the two later theories,
was not rejected outright and his views and ideas were reassessed as
his following grew. The concepts presented by him were stretched and
expanded, especially those related to analogy and yma’, to yield not
‘only a more flexible theory, but a mare flexible and accommodating
system of law than the one originally proposed by al-Shafi'l. By the
end of the fourth century or the middle of the fifth, al-Shafi''s popu: {
larity, as reflected in his modified theory, appears to have grown, two |
and one-half centuries after his death, and the jurists of his school
appear to be poised for a systematic exposition of Shafi‘ law and
legal theory.

‘A period of feverish activity began in the legal field. It was not)
only Shafi'T jurists who started producing the well-known works on

190 The Theory of the Purposes of the Law

Jaw, but the Hanafi jurists too, The latter stated the theory of their
predecessors by deriving it from the earlier decisions. This period
witnessed the emergence of the giants in Islamic law: al-Sarakhsi, al-
Bazdawi, al-Juwayni, al-Ghazali, al-Razi, al-Marghinanl, al-Kasani,
al-Qarafi, Sadr al-Shari'ah, al-Nawawi, and many others. The fifth

\, and sixth centuries were important for developments in the law and

legal theory as well as for the revival of the Islamic sciences as a
whole. This is evident from al-Ghazall's works.

Al-Ghazili’s works show that he was working for a revival not
only of the Islamic sciences as a whole, but also of law and legal

theory, Building on the views of his , he expanded
a-Shafiy’s theory: ating jurists
like Aba Hanifah, Malik, Ab Yasuf, an . The result of

his efforts was a new theory that assimilated the essence of earlier
decisions and theories, Although he remained faithful to his school
and did not claim that it was a new theory, it would be a mistake
to assume that al-GhazAli's theory is the same as al-Shafi'l's theory.
‘The new theory he presented is far more flexible and complex than
the strict theory proposed by al-Shafi'.

Al-Ghazali’s views were debated by the jurists for centuries, but
were never practiced. The reason was that the function of his theory
‘was not to develop the fixed part of the law, a law that was by now
well settled, His new theory appears to be directed more toward the
imam, that is, toward the development of the flexible sphere of the
law that changes with the times. This powerful theory is the theory
of the purposes of the law.

12.1, Probable reason for evolving a new theory

One way to understand the phenomenon that could be the cause of
the new theory is by saying that a literal system of legal interpreta-
tion falls back on the purposes of the law. It is forced sooner or later
to take the whole law into consideration for arriving at the meaning
of an individual text or statute, which is the same thing as interpre-
tation in the light of the purposes of the law. ‘urred in
‘Western law as well, as is explained by Karl N.\Llewellyn When he
says, “Ifa statute is to make sense, it must be read in the light of
some assumed purpose. A statute merely declaring a rule, with no

.

‘Tueonigs oF Istamic Law 191

purpose or objective, is nonsense.”! To show how this is achieved, he
adds:

But @ court must strive to pense os 6 of our
Jaw as a whole, It must, to use Frank's figure, take the music of
any statute oa written by the legialature; it must take the text
of the play as written by the legislature. But there are many
ways to play that music, to play that play, and a court's duty
i to play it well, and in harmony with the other music of the
legal system.?

in Islamic not from a weakness
pore paneer a from a the true intention

of the Lawgiver, to stay as close to the text as is possible. This is an
inherent feature of Islamic legal theory and has been built into its
design, ax has been explained in detail in the first part of this book.

The credit for i the t which the the
Planet per faw were unveiled, or through
which the whole law was to be while in-

terpreting an individual text, goes to ¢ ‘ite , but the
law did not end with them.

Maas other juris cut scross schoot boundaries and participated in
the process, a process cannot be said to have comé to an end,
Voluntary acceptance of the important ideas of this new theory with-
‘out bias, and of participation in its development, reflects the strength
of this theory of jurisprudential interests.

Before this process of development can be traced, however, the
nature and strength of the strict theories need to be reviewed in the
light of the nature of the texts or sources of Islamic law. This will
indicate why it is necessary that the purposes of the law must emerge
‘out of the traditional legal theory.

12.2, Strict theories and the texts

‘The brief explanation of strict theories in the previous chapter reveals
a few significant features./The first is that the jurists were very careful
about accépting sources of law that could not be justified on the

‘Karl N. Liewellys, “Remarks on the Theory of Appellate Decision and the
Rules of Canons About How Statutes are to be Construed,” Vanderbilt Low Re-
wiew, iti, 395, 400 (1950)

Ibid. 399. Footnote omitted. Emphasis in the original

192 The Theory of the Purposes of the Law

basis of the texts of the Qur'an and the Sunnah. The only source,
besides the texts and consensus, that met the criteria laid down by
all the Muslim jurists was a strict form of analogy or syllogism. Some

the discovery of the true intention of the
is conspicuous by its absence; there was | of extending the
law to cases that might be totally unrelated to the texts, and which
could not be covered by means of strict giyds.

‘The effects of such a nazrow or restricted theory of interpretation
can be countered if the texts from which the law is derived provide a
Jarge amount of source material. One way of estimating the number of
fundamental evidences is to undertake a statistical analysis of these
sources. Such an analysis must be seen from the point of view of a
jurist involved in the analysis of this law. One book that is definitely
free of school bias and in which the author has done his utmost to
link each evidence with’ the derived rule is Ibn Rushd's Bidéyat al-

" Mujtahid, It covers almost the entire corpus of the law, including
inheritance. The number of verses from the Qur'an quoted in this
book to prove the ahkdm are five hundred and sixty. If the verses
repeated are excluded we are left with about five hundred verses,
Out of these the bulk of the verses regulate the ‘“ibdddt including
zakdh, This leaves us less than a hundred verses for the remaining
Jaw. A large number of these is about inheritance, huddd penalties,
marriage, divorce, and other issues of personal law. Now, if a new set
of facts, not covered by these verses, is faced by the jurist he turns
to the Sunnah.

In the case of traditions, the ratio is the same, although the num-
ber of legal traditions is roughly three times the number of Qur'&nic
verses dealing with the law. Ibn Rushd has quoted traditions on one
thousand seven hundred and ninety-nine occasions in his book. Some
of these traditions have # lange number of chains, but the implication
is the same. He quotes a different version of a tradition only where
there is an addition or conflicting matter. It may safely he assumed
that he has quoted almost all the relevant representative traditions.
Out of these traditions about ten percent are repeated, close to twelve
hundred relate to the ‘ibddét including zakdh. A number of traditions
relate to slavery, to personal law, that is, marriage, divorce, and in-
heritance. This leaves us with about three to four hundred traditions

Tueortes or Istamic Law 193

that cover the mu'démalét and the criminal law. Further, one can see
that groups of traditions may relate to single topics like inheritance,
huddd penalties, and the diyét, This leaves us with a limited number
of traditions for the remaining issues.

Besides this, the number of cases where underlying causes have
been determined can also be counted. The cases of consensus,
istibadn, and maslahah mursalah are also limited, not exceeding a
dozen in each case. A survey of the manuals of law, with reference to
the texts, will indicate that wherever an underlying cause could be
discovered and used to extend the law, it has already been discovered
and used by the jurists. This process appears to have been completed
at the latest by the fifth century, if not earlier.

12.3. The design of traditional legal theory and the ex-
tension of the law

‘This analysis reveals that all the areas of the law for which texts are
found have been developed fairly thoroughly and effectively by the
furlsts. In those areas where the law has not been explicitly stated,
but where extension is possible by means of consensus and analogy,
have also been developed. Nevertheless, as the traditional theory op-
erates on the texts in a way that the derived law must be directly or
indirectly related to the literal content of the texts, the effect of such
limited, What we see is a theory
the law text when it is working on a limited number of
sources, How, then, can the law be expected to be available for‘otber
areas of human activity and new developments?
It may be argued that there were other methods of extending the
of the texts, like istihedn used by the Hanafis and Malikis,
‘used by Sh&fi'ls, and istisléh used by the Malikis. While this
is true, it becomes obvious to anyone occupied with the study of
Islamic law that the number of cases where these principles have
been actually used is limited. It is mentioned by some that Malik
may have used it himself only in one case.* The cases where the
principle of maslahah, for example, has been employed are not more
than a dozen, as mentioned by Ibn Rushd. The same may be said of
. the highly publicized principle of istihsdn used by the Hanafites. In

*Majid Khadduri maintains that al-Shifit and Sahndn both cite the case of
‘of fresh dates for dry dates, which was otherwise prohibited.
Ista

194 The Theory of the Purposes of the Law

many of the cases it is merely the preference of a general principle
over strict analogy. Thus, the rule would have been settled by analogy
if istihedn had not been used. The cases where it has been based
upon necessity (dardrah) are also limited. The only conclusion that
can be drawn from this is that strict theories are designed in such @
way as not to let the law extend beyond a limited sphere, a sphere
in which the texts operate explicitly, with some extension through
strict analogy.

A community, however, that has chosen to live by the law of
Allah, and which consistently maintains that “Islam is a complete
code of life” definitely expects more. It would expeet justice, both dis-
tributive and legal, according to the law of Allah in every area of hu-
man activity. Thus, it would expect all the branches of government —
the legislature, judiciary, and the executive—to be regulated by this
law. It would expect human and economic rights to be clearly spelled
‘out and enforced by this law. It would expect this law to control and
regulate all commercial activity within the Muslim state, and to pun-
ish all offenses against it whether it is petty theft or grand larceny
and white-collar crime. Strictly speaking, when all human activity is
to be regulated by the dictates of the shari‘ah, there is no reason why
even the rules of traffic should not be derived from its principles. All
this is beyond the design of the strict theories of interpretation.

It is, however, a firm belief of the jurists that nothing has been
left out in the texts, and a rule can be discovered for every situation
faced by human beings. The verse of the Qur'dn, “We have neglected
nothing in the Book (of Our Decrees),"* is cited in support of this
view. How, then, is the law in the texts to be extended?

‘The only way that the law found in the texts can be extended
to all areas of human activity is through the general principles of
Islamic law. These are found in abundance in the Qur'an as well,as
the Sunnah of the Prophet, Al-Ghazali not only laid down methods
for the identification of the principles of the Qur'an and Sunnah,
principles that ultimately point to the purposes of the law, but he

detailed methodology to be used by the jurist for deriving
the law from these general principles. All this could have been a part
of al-Ghazali’s grand scheme for the revival of religious sciences, The
process had begun, however, in the works of al-Juwayni, and perhaps
even before his time. We will now examine these methods in some
detail.

‘Qur'an 638

Treories oF Istamic Law 195

12.4. Al-Ghazali’s theory of the purposes of law

In this section, we shall show that the new theory propounded by
al-Ghazali emphasized two kinds of reasoning, in addition to the tra-
ditional methods of interpretation. These were reasoning from prin-
ciple and reasoning based on a somewhat wider form of analogy as

to the narrow syllogism practiced by the traditional meth-
‘ods. We shall also show that these are methods that a judge, in a
modern legal system, will not find to be unfamiliar. In fact, he is
quite familiar with them. The only difference is that in al-Ghazali’s
theory such reasoning is undertaken with reference to the purposes.
of Islamic law, while the modern judge refers to the general propo-
sitions of his own legal system, to principles of policy, and even to
moral norms, and these are collectively referred to by some as social
propositions.*

‘Al-Ghazili appears to have been accused, in his own time, of
inventing a new principle of interpretation or source for Islamic law.
He answers this by saying that what he stated was completely within
the limits imposed by giyds.” His claim appears to be correct, as his
explanation of maslahak mursalah, or istidlal mursal, is nothing more
than a wider form of analogy, and, therefore, a valid form of giyas.
‘The anxiety of those who questioned him is based on the insistence of
al-Shafi'l that there are only four sources of law. The fourth principle,
he insisted, was the only valid form of ijtihdd, and this was giyds.”

Tt would be wrong to assume, however, that this expanded form
‘of giyds is the same as that originally proposed by al-Shafi‘s, even
if the later jurists were happy with attributing everything to their
imam, for this new form of analogy had come a long way from that
earlier method,

12.4.1. Ab-Juwaynt’s proposals

‘The entire credit for the new theory cannot be passed on to al-
Ghazal, because the inspiration, and indeed many of the details, have
come from al-Juwayal, the Imam al-Haramayn, and are recorded in
his book al-Burhdn, especially in the second volume that deals with
qiyds, Discussions of these issues must have started much earlier, for

“Eisenberg, The Nature of the Common Low, 14.
*ALGhasall, ai-Mustayfa, 1, 286.
TALShafit, ol-Résalah, 477.

196 The Theory of the Purposes of the Law

the Hanafi jurist al-Dabisi, well-known for expounding the general
principles used by the Hanafites, looms large in the works of both
‘al-Juwayni and al-Ghazali. There were others like Aba al-Husayn al-
Bagri (d. 436), who had discussed the problems related to maglahah
much earlier, The essential features of the entire theory presented
by al-Ghazall can be gleaned from the works of al-Juwaynl. What
al-Ghazali did was to knit, in his organized and systematic man-
‘ner, most of al-Juwayni's ideas into a comprehensive theory, He also
changed and refined the terminology used by al-Juwayni. A theory
‘that appeared ordinary in al-Juwayni's work suddenly became alive
im al-Ghazall's hands.

‘The extension of the forms of giyds yas not the only proposal
made by al-Juwayni. He generated another idea that led to a num-
ber of works on a somewhat different, yet related, subject, as we
shall have occasion to see. This was the area of the general principles
that can be subsumed under the purposes of Islamic law, Al-Subki
quotes al-Juwayni as saying that the science of gawd'id (general prin-
ciples of figh) needs to be developed.* This led to the development of
the field known as al-ashbdh wa al-naza’ir. The books dealing with
this area are usually divided into independent sections that conform
with the approved categories of gipds al-shabah. Many of the general
principles appear to have been gathered from Hanafite sources, es-
pecially the works of al-Karkhi and al-Dabdsi, That the first jurists
who formulated these principles were Hanafites is acknowledged by
‘the Shafi jurists.” A later Hanafite jurist, Ibn Nujaym, also partic-
ipated in this process, but he appears to rely heavily on al-Suydti's
work, and he appears to have read al-Subki's book mentioned in the
previous note. Some passages have been transferred verbatim ftom

“See the introduction in al-Subki, ‘Abd al-Wabhab ibn ‘Al’ Tj al-Din (4, 771),
ol-Ashbah wa-al Nagd'tr, 2 vols, (Bayrat: Dar ab Kutub a-'Imbyah, 1411/1991),

“See the introduction to Abé al-Fad! ‘Abd al-Rabmas ibn Abd Bakr ibn
Muhammad ibo Abmad Bakr Jala) al-Din al-Suy@si al-Kbudayrt (4. 91/1: ,
al-Ashbah wa al-Napa'ir (Cairo, 1376/1959). He narrates @ story about a blind
Hanafi jurist who had assimilated the entire corpus of figh under seventeen prin-
ciples. This jurist kept the principles a closely guarded secret, bet every nigh
‘used to shut himself is his room and repeat these principles. One day a Shafi't
jurist concealed himself in his room, and being blind the old jurist could pot see
‘him. With this trick he was able to gain knowledge of the principles, This is, of
course, a likely story, but it goes to show that the Hanafi jurists were the first to
formulate vuch principles. (An easier way for this Sba6't jurist would have been
to read al-Karkht's book).

Turories oF Istamic LAW 197

al-Suyiiti's book.!? He must have relied on Hanafite texts also, as
he does make some original contributions within the principles. The
only jurist, however, who tried to link all these and other principles
to the purposes of the Jaw is al-Sulami, though he treats the worldly
purposes of the law with the purposes for the Hereafter. Another ju-
rist who may have been inspired by the same movement is al-Qarafi.
He focused on the art of distinguishing cases falling under separate
principles, a process that works within giyds as well as general prin-
ciples, and is something that is normal practice with modern judges.
Some of the principles he deals with pertain to literal interpretation
of the texts, but many of these are principles of law.!!

‘All this shows how the practices of the Hanafites, in their use
‘of general principles, the principles of maslahah attributed to the
Malikites, and the views of al-Shafiii are gathered into a unified
whole, a new theory, inspired and initiated by al-Juwayni, Of course,
differences still remained, as will be obvious later. We may now turn
to the details of this theory,

12.4.2. Legal theory and the purposes of law

AlGhazall devoted an entire book, Shifé" al-Ghalil fi Masdtik ol- *
Ta‘lil, to his new theory. He does mention the magagid al-sharv‘ah in
his book al-Mankhul,.? which apparently was compiled when he was
very young, but he does so briefly. Here too the terminology used
is different from that used by al-Juwayni. The general practice of
researchers so far, while dealing with the principle of maglahah, has
been to mix up al-Ghazali’s views with those of later jurists. This
may be a commendable research method, but it causes confusion in
understanding a theory that is somewhat complex. We shall, there-
fore, rely completely on al-Ghazali's views and resort to the works of
the other jurists where an addition may have been made or a point
left vague in al-Ghazalii's work has been explained better by some
other writer, which it must be admitted is rare. In fact, some of the
ideas essential for understanding the complete theory have been left
out by later jurists in their attempts to summarize and encapsulate

“Ton Nujayes, af Ashbah wa ab-Nast'tr (Bayras, 1980)

“ALQaraft, Kitab Anwar al-Burdg fi Anwa! al-Purdy fi Upil of: Figh, 4 vols,
(Bayras, 1343),

\FA-Ghavah, AbG Hitmid Mohammad ibs Mubammad (505/2111), al-Manthut
min Ta'tigat af-Ugal (Damascus, 1970),

198 The Theory of the Purposes of the Law

al-Ghazall’s views, just as al-Ghazali may have summarized some of
al-Juwayni’s views.

A distinctive feature of al-Ghazali's work in this book is a shift
from the emphasis on what the jurists should do to derive the law to
‘an emphasis on what the jurists actually did for the discovery of this
law, In other words, he builds up his theory from earlier practices
and decisions. He uses examples from the decisions of the Malik ites
and Hanafites to demonstrate the methodology of these jurists in
port of his theory. This shows that’he is not inventing something
new, but is legal theory like it should be framed—from
what the judj 13 He does not, however, confine
himself to one school. It may be added here that this approach is
visible in the works of many jurists of this time, especially Hanafites
like al-Sarakhs! and Sadr al-Shari'ah, who build up their theories
from what has preceded. In this restricted sense there can be as
maay theories as jurists who made some original contribution. This,
at least, is true of Western law today.

12.4.3, Qiyds and the formation of principles

Qiyds (analogy) is used in Islamic law to extend the rule (hukm)
provided in « text for a specified entity or thing to a new case not
‘specified in the text. This is achieved by identifying an underlying
cause (‘illah) for the hukm in the text, If the same underlying cause
can be identified in the new case, the Aukm in the text is extended
to the new unspecified case. The validity of such analogy depends
mostly on the discovery of the correct underlying cause in the text.
It is for this reason that a major portion of the discussions in the
works of the jurists on upil al-figh is devoted to the underlying cause,

A simple way of explaining the operation of strict qiyasis through
a hypothetical case that may not conform with the actual law.'* To
do 40 we may consider a number of cases as falling under one cat-
‘egory or genus. The basis on which they have been gathered under
one category is a common attribute. If one of the cases is identi-

"This is what is done in the law. A legal philosopher tries to understand bow
the system works. After analyring the work of jedges, be tries to formulate a
theoty that explains how judges discover and apply the law. We have been saying,
all along that al-Ghazali's theory has sot been pat to practice ax yet, By this is
meant the ways in which general principles are derived and applied

"The following example has bees constructed from the illustrations provided
by al-Ghazsir (Shifa', 149) and Sade al-Shart'ah (al-Towdih, i, 572),

Turontes oF IsLamic Law 199

fied in the texts and the attribute on the basis of which a Aukm has
been assigned is also determined, the hukm can be passed on to all
other cases, within this genus, that exhibit the same attribute. We
may assume, for example, that minor boys have been identified in
‘the texts as being unable to manage their financial affairs or mar-
riage contracts. The hukm imposed in such a case is that of wildyah
(guardianship), that is, it is the guardians who will manage their
affairs. If the effective attribute identified is “minority,” the hukm
of wildyah can be passed on to all other cases of minority. Thus, if
the minor girl has not been mentioned in the text, her case will also
be covered by extending the hukm of wildysh to her. This operation
takes place at the lowest level, and is the case of strict analogy.

We notice, however, that there are other cases where individu:
als who are not minors are also not able to manage their own af-
fairs. These could be the cases of the idiot (ma‘ttA) and the insane
(majniin), Can they be placed under the supervision and control of
the guardian? The answer is obviously “yes,” but a new attribute
has to be determined that can hold the existing cases and the new
cases under a common category. To do this we have to move one
step up and say that a suitable attribute is the lack of legal capac-
ity in the case of the minor boy or girl, that is, their inability to
grant a valid consent. Is this attribute found in the cases of the idiot
and the insane? If so the hukm of wildyah can be extended to them
too, The difference between these two attributes determined as the
underlying causes is crucial. At the lower level, we move from one
specific case to the next by saying, for example, that ‘A’ is a minor
and is subject to guardianship, but ‘B’ is also a minor and, there-
fore, must be subject to guardianship. As we move up the ladder, we
leave behind specific (khass) cases and start entering the area of the
wisdom (hikmah) behind the original case, which will be expressed
more in the form of general principles as we move higher and higher.
‘We are framing a general principle if we say that “all persons lacking
legal capacity or the ability to give a valid consent will be subject
to the hukm of wildyah." If we move one step higher from this and
finally acknowledge that all cases of necessity related to consent will
be subject to the hukm of wildyah, we are no longer in the domain
of strict analogy; we have entered the realm of a general and flexible
principle, however vague the concept of necessity (dariirah) might be,
Perhaps, wildyah can now be extended to the safth (spendthrift), who
is not a minor nor does he lack legal capacity, but is wasting away
his fortusle. The idea may possibly be extended to commercial law

200 The Theory of the Purposes of the Law

Figure 12.1: The Structure of Attributes

Safih

for financially sick firms and corporations that squander the wealth
‘of the investing public.

According to the terminology of the jurists, when strict analogy is !
at work, the ‘ayn (specific case—minority in the example—of the at-
tribute) has been acknowledged by the law in the ‘ayn (specific case)
of the hukm : wildyah, When they move up one genus, they would
say, for example, that the genus (general category’ vability—of the
attribute has been acknowledged in the ‘ayn of the hukm : wildyah,
There are other possibilities too.

‘As Jong as these general rules or specific cases are identified in
the texts, there is no problem, but the question is whether the jurist
is at liberty to derive such attributes or general rules himself on the
basis of his goneral knowledge of the texts of the Qur'an and the
Sunnah? This is where the new debate, and the new theory, begin.

12.4.4. The concept of the mundasib or maglahah

Al-Ghaxali begins his book, Shifa’ al-Gholi, with a description of
the methods for discovering the underlying cause directly from the
texts as well as through consensus (ijma*). The method of discovering
the ‘illah through the text (nags) covers several techniques. In these
cases the text is itself said to indicate the underlying cause, either
directly or indirectly. When this is not the case the underlying cause

‘Taeortes or Istamic Law 201

may be determined by consensus of the jurists. This is known as the
method of determining the ‘illah through ijmd‘. We are not concerned
hete, at least directly, with the details of these methods. Besides the
methods of discovery through the text and ijma’, the ‘illah may be
derived (mustanbifah). It is a method over which Muslim jurists have
disagreed extensively, and this is what concerns us here.

The underlying cause discovered through the text or through
‘ijmd’ is also known as the effective (mu'aththir) cause, while the de-
rived ‘illah is known as the suitable or appropriate (mundsib) cause,
‘Al-Ghazaly begins the discussion of the mundsib by answering the
objection raised by the Hanafi jurist Abi Zayd al-Dabisi that suit-

(mundsabah) is not sufficient by itself for determining the
‘illah, and the causes must be effective (mu’aththir), that is, dis-
covered through the text or through ijmd‘. Al-Dabisi's argument
is that the derived ‘illah is based on ikhélah (reflection, conjecture),
which is a subjective method and is not persuasive for other jurists.!*
Al-Ghazall replies that the mukhil (the attribute that comes to dom-
inate the mind of the jurist) is not based on mere reflection, but is
something that is persuasive for others too through rational)inquiry
into the general of
confusion, he says, vague definition of ity (mundsabah)
and its designation as ikhdlah.'? The jurists, according to him, ap-
plied a large number of terms to it, thereby confusing the issue, Some
of these terms are mu'aththir (effective), mundsib (suitable), mukhit
(reasonable, convincing), muld'im (compatible), midhin (authoriz-
ing the hukm), and mush‘ir bih (indicative of the hukm).!® Further,
he says that some jurists have also mixed up mundsabah with other
forms of analogy like shabah and ford.'®

Al-Ghazall himself focuses on three terms: mu'aththtr, mundsib,
and mula'im.?° He says that mu’aththir is the underlying cause that
has been determined through the text or tjmd', but this term is ap-
plied only to make a distinction between different methods through
which the causes are indicated, otherwise it would be possible to
call the mundsib as being muld’im as well as mu'aththir, and the

“ALGhaeall, Shift’ al-Ghali, 142,

Ibid. 143.

*1bid.

ibid. 143-44.

WIbid, 144. A belef explanation of fard will follow later.
* Ibid.

202 The Theory of the Purposes of the Law

mu'aththir as being mundsib as well as mula'im.”' Attention, how-
ever, should be focused on the distinctive factors. What he appears
Beds Sc hramdreategebenarpabedlr ee oS
‘attributes; but the distinction and designation is based on
the way they are proved. This he explains through an example,??

‘The underlying cause for the prohibition of wine is the attribute
(wagf) of intoxication, because it leads to disputes, enmity, and ha-
tred, This is known thraugh the text and is mu ’aththir in that sense.
However, if it had not been known from the text, we could still have
derived the effective wasf as intoxication, insofar as wine attacks and
damages the intellect.” In this sense the attribute of intoxication is
mundsib (suitable), because we have not associated thasgeaee with
the color of wine, or its smell, or something aioe, but with a fac-
tor that is easily acceptable to human reason.** This cause, that
is, something attacking the intellect, is also effective (mu ‘aththir) in
‘some sense, but its effectiveness has not been proved through the
‘text or ijma'.® Thus, if we say that a group of persons who conspire
and participate in the killing of one person should all be subjected
to gisds (retaliation), although the text has not acknowledged this
explicitly, the meaning appears reasonable insofar as it prevents a
way of wasting human life through the evasion of penalty.*

This underlying meaning is termed simply as mundaib, and not
mu aththir, because the underlying cause has not been fixed through
the text or ijmd', even though it can be said to be an effective cause.
‘TW DISTINCTION, THEREFORE, Lies IN THR WAY THE LAW NAS ACKNOWLEDGED
THE ATTRIBUTE THAT seRVES A THE ‘illah.?”

It is possible, however, that an attribute is acknowledged by the
law through the text or through ijmd", yet it may not be mundsib
(suitable), or understandable in terms of the general propositions
of the shar‘2® These are usually the non-rational causes associated
with ritual. The examples al-Ghazali gives are those of the emission
of sperm, which is pure in itself, but leads to the obligation of bathing

Turories oF IsLamic Law 203

to achieve ritual purity, or it is like the touching of the genitals when
it leads to the nullification of ablution in Shafi'ite law.?* Nevertheless,
these causes are also designated as mu’aththir (effective) even if they
are not mundsib.

‘After explaining this, al-Ghasali raises a question about the
muld'im (compatible) attribute. How does the muld'im relate to this
distinction between the mu’aththir and mundsib!™ The explanation
provided by al-Ghazali in Shifa” al-Ghalil is precise, but there are
certain aspects missing when we compare this with his later work
al-Mustas/a min ‘Tim al-Ugil, It is to this later work that we may
turn now and return to the earlier work later for reconciling some of
the discrepancies between the two explanations.

12.4.5, The structure of the attributes and the ahkam

AbGhazali explains that in order to understand this issue the at-
tributes acknowledged by the law are to be conceived as lower cat-
egories leading to a genus, which in turn becomes a category of a
‘till higher genus, Finally, a chain of categories and genera is built
up till we reach an ultimate genus. The whole structure of attributes
displays an ultimate genus at the top and the lowest category at the
bottom. This is not all. Facing this structure of attributes is a set
of structure of corresponding ahkdm.*! Thus, an attribute (was/) in
the first structure is acknowledged as an underlying cause not for
itself, but for a hukm in the structure of the abkdm facing it. Once
the attribute is acknowledged for a corresponding hukm, the hukm
can be transferred to a new case exhibiting the same attribute in a
similar pattern. A brief explanation of this has preceded earlier.

‘Types of analogy

Al-Ghazall considers two levels of these attributes and the ahikdm to
explain the difference between the mundaib that is mu’aththir and
the mundsib that is muld’im. He says that when the ‘ayn (specific
case) of the attribute js acknowledged by the law in the ‘ayn (specific
case) of the hukm, the resulting analogy is called qiyas fi ma‘nd al-

bid. 148.
*Tbid. 148-51
* ALGhasaly, ol-Mustay6é, ii, 320-21

204 | The Theory of the Purposes of the Law

—
asl,>? or extension included in the implied jing of the text. We
may recall that this is the type of analogy ¢ issible by al-
‘Shafit. This is the case where analogy les into literal extension of
the meaning, like the association of nabidh (mead) with khamr (wine)
for purposes of prohibition of shurb (drinking), or the association of
tamr (dry dates) with zabib (raisins) for purposes of ribd.*

When the ‘ayn (specific case) of the attribute is acknowledged
for the genus of the fuk, the resulting analogy is mu’alKthir.®® The
‘example for this case is the preference given to the brothers of the
father or mother (uncles) in the case of inheritance, from which an
analogy is drawn for the right to guardianship in the cases of mar-
riages of minors. In this case wildyah (guardianship) is to be passed
‘on to those relatives who had preference in cases of inheritance,™*
Here wildyah is not a specific category of inheritance, but they are
gathered together through a common genus, which is proximity of
Kinship.

‘The third category of analogy is the case where the of the
attribute has been acknowledged in a specific
‘This is the case, for Se
formance (qaqa?) of prayers mised by a woman during ber me0-
strual period, on the analogy of the permission to miss two out of
four rak‘ahs of prayer during travel.” Now the immediate ‘illah in
the latter ease is travel (safar), Hoever, we move one step up to the
genus, of which travel forms a specific case. This is the attribute of
hardship (mashaggah), The menstruating woman is, therefore, ex-
cused from the performance of prayers that she missed due to her
state of ritual impurity during menstruation. This is the case of the
muld'im (compatible) attribute, a case that conforms with the other
propositions of the law.” The important thing to note about this
type of compatible (mulé'im) attribute is that it is supported by an
ag! mu‘ayyan, also called shahddat al-as! by al-Ghazali. The crite-

“hid. 319,
"Thi.

thd.

“Tid, 318-19,
"Ibid. 319
"tid

"ibid

**Thid. 220.
“Reid,

Tueories o Istamic Law 205

Figure 12.2; Acknowledgement of Jins in the ‘Ayn

é
acing by

rion for this is that the genus, the higher ‘iliah, must be derivable
directly from a sated ja The text,-or be Tinked to
it directly through a chain of genera. Thus, hardship is a higher
genus, in our example, but it has been derived from the attribute
or ‘illah of travel (safar), which in itself is stated in the text. This
category of mulé’tm, whose genus has been acknowledged by the law
for a specific hukm, is also supported by the shahddat al-agl: It is
to be noticed here that this is a kind of reasoning from principle, a_
principle that is derived by the jurist from the texts. This principle is
lesser in strength than the principles that are explicitly stated in the
text, and which have been used by the Hanafites for the derivation
of the law. The Hanafites also use derived principles.

‘When the genus of the ‘illah is acknowledged. by the law for the
genus of the Aukm the problem is not so simple to understand, be-
cause the statements made by al-Ghazall In his two works have to be
reconciled. If a genus is acknowledged for a genus, he designates the
category in one place as the mundsib gharib and on another occasion
as istidla! mursal or maglahah mursalah.? This has led to consider-
able confusion in the writings of later jurists," and it is only after
prolonged thought and deliberation that one can make out what is
going on. The basis for this confusion are the different uses of the
tern gharib by al-Ghazali. Here al-Ghazali uses the term mundsib
gharib and says that it is an attribute whose genus is supported by

hid
“iid,
See, e.g., abTaftaxint, of-Talwth ‘at’ al-Tawdth, i, 566,

206 The Theory of the Purposes of the Law

another genus in the law and it also has the support of shahadat al-

asi,4* that is, its “illah is derivable from the text.“ The problem with

this attribute is that it is not compatible with the general proposi-

tions of the law, that is, it is not muld'im.® This becomes obvious

when the case is examined closely. Al-Ghazalli has given many exam-

ples of this category,*” and we may use two of these to illustrate the
int.

The first example is the case of a minor girl who is married. The
issue is whether guardianship (wildyah) over her is to be terminated
and her wealth is to be delivered to her." We may compare her case
to the married woman who is not a minor and say that since marriage
and experience in the affairs of the household bring discretion and
‘maturity, we should terminate guardianship and deliver the wealth
of the married minor girl to her. This conclusion appears to be sup-
ported by the verse of the Qur'an, “Prove orphans till they reach
the marriageable age (or are married); then, if ye find them of sound
Judgment, deliver unto them their fortune."* This i the text that
provides the shahddat al-agl. The genus that supports her is found
in a tradition of the Prophet, which implies that the married woman
has right to give her own consent.*? This pertains to marriage, but
corresponds through its genus with the case of wildyah in the case of
wealth."' "This attribute appears to be compatible (muld'im), but a
closer examination reveals that it is not. The general proposition of
the law is that all minors will be subject to the hukm of wildyah, This
is what makes this issue gharib,*? even though its genus is affirmed
by another genus and there is support for it from an agl.

The second case is that of the four types of food mentioned in
the tradition of ribd.*® Al-Ghazall says that exchange Is permitted in:
these foods with three conditions of similarity, immediate possession,

“*ALGhasalt, Shift! ol-Ghalt, 151,
“bid, 151, 189.

“tid

“hid. 149-86.

tbid, 180.

Que'sn 4 6.

"ALGhars, Shifa', 154,

“bid, 150

“Ibid, 153

"bid, 151, 154

‘Tweonses oF Istamic Law 207

and absence of delay."* However, we may determine the ‘illah to be
food. We are led to this conclusion due to the importance of food
for human beings.5* Uncontrolled trading in it may lead to artifi-
cial shortages posing hardship for the common man, and eventually
cause social problems. The asl supporting this is the tradition of the
Prophet, which requires that food is not to be sold for food except,
with equal measure, immediate exchange, and absence of delay on
both sides. A different genus appears to have been acknowledged in
the same way in the law, This is the permission for sexual intercourse
through marriage, which has also been permitted with three condi-
tions: dower, wildyah, and witnesses.’ An uncontrolled permission
of sexual activity is likely to lead to social problems, as in the case
of food, A closer examination of the problem reveals that the issue
is not supported by the general propositions of the law,"* which not
only permit transaction in all other kinds of important foods, but
also freedom of contract and the right to dispose of one’s wealth as
against the latter case, because free sexual activity is not permitted.
‘The attribute is, therefore, not muld'im and is classified" as gharib."

‘This does not mean that the mundasib gharib is not permitted as
a method of reasoning. It is permitted in al-Ghazali's view though it
is weak as compared to other forms of legal reasoning.

The case of the istid/d! mursal or maslahah’ mursalah is different
from the mundsib gharth described above. In this case also a genus
of the attribute is acknowledged for the genus of the hukm.*! How-
ever, what distinguishes it from the mundsib gharib is that it is not
supported by the shahddat al-asl, that is, its ‘illah is not derivable
directly from the lower level of the evidences. Purther, as against the
gharib, it is compatible with the general propositions of the law.®?
‘Thus, the hold of the lower categories is released, let go, to rest in the
higher genera. Two separate cases of the genus can now be gathered

“Tbid. 154.

"Thi. 151-52.

*"Tbid. 152-53.

"ibid. 153

"In fact, he says that the two examples can be considered as belonging to the

‘category of the mula'im. Ibid. 154, 174
“Ibid, 188-89.
Ibid, 189.

208 The Theory of the Purposes of the Law

to give the hukm. Examples of this category shall
be provided later.

It would be helpful to summarize the above discussion and list all
the categories of the underlying causes that have been considered 50
far, and some that have not been described, to provide a comprehen-
sive picture of the way the new theory views the underlying causes.

12.4.6. Mu’aththir, mundsib, and muld'im

‘The majority of the underlying causes to be found in the texts seek to
establish, preserve, ot protect a determined purpose of the law. The
methods through which these causes are discovered are first divided
into two types. The first method covers the discovery of the cause
from the text or ijmd‘, there being a number of detailed ways in
which the cause is indicated by the text, The other method is the
derivation of the cause by the jurist from the implications of the texts
and provisions of the law. It is binding upon the jurist to follow and
act upon the causes determined by the text or ijmd‘. Such causes are
known as effective (mu’aththir) causes. If the mu‘aththir cause seeks
to establish a purpose of the law it is called mu’aththir mundsib,
otherwise it is merely mu’aththir® Both are equally binding.

For the derived ‘il/ah, the condition is that it be mundsib, that
is, it must establish, preserve, or protect an acknowledged purpose of
the law. Such preservation or protection is known as maslahah.®
Insofar as maslahah, in its literal sense, means the seeking of a benefit
or the avoidance of harm, the derived ‘illah may seek to preserve
benefit or avoid a harm based on pure human reason. This is pure
maslahah and may not conform with the purposes acknowledged by
the law. In such a case, it cannot be called mundsib, A further
condition for the mundsib is that it be muld'im (compatible with the
general propositions of the law).*” If it is not compatible, it will be
called mundsib gharib, The mundsib gharib is supported by what is
called the shahddat al-asl, that is, its ‘illah is derivable directly from
@ text. It may, therefore, be acceptable in some cases. If the cause

‘Ibid. 158-59,

“Ibid. 161.

"Thi.

bid.

‘“"Ibid, 189, Sade al-Shart'ab, al- Towdih, i, 566.

amic Law 209

Tusonses oF Is

Figure 12.3 Mu’aththir, Mundsib, and Muld'im

Mah

Measeib Gharib

210 The Theory of the Purposes of the Law

cannot be derived directly from a text in this case, it moves from the
category of mundsib gharib to one of pure gharib. This is rejected by
agreement of the jurists.

For the sake of clarity we may list these cases in order of the
strength of the underlying cause:

1. First Category: Discovery of the cause through the text or
through ijma’.

a) When the cause is discovered through the text or through
ijma’ and the cause conforms with the purposes of law, it
is called mu’aththir mundsib.

b) When the cause is discovered through the text or ijmd’,,
but it does not conform with the purposes of the law, it
is called pure mu’aththir. In this case the cause is not
supporting a maslahah, yet it has to be followed because
it is emerging directly from the texts,

2. Second Category: Discovery of the cause through istinbat
(derivation). When this cause conforms with the purposes of
law as well as the general propositions of law, it is called
muld'im. This is of two types:

a) When it is supported indirectly by a specific text, that
is, ahahddat al-a4l, it is called mundsib muld'im or sim-
ply muld’im. This provides a very strong type of general
principle, which is to be followed

b) When it is not supported by a specific text, that is, there is
no shahédat al-ayl, it is called istidlal mursal or maslahah
mursalah, This provides a principle in which reasoning is
based on a special type of analogy.

3, Third Category: If the cause is derived through istinbat, and
conforms with the purposes of law, but is not compatible with
the general propositions of the law, that is, it is not mula’im,
itis called mundsib ghartb. Such a case is usually supported by
a text, that is, shahddat al-asl. This case becomes acceptable
through additional conditions stipulated by al-Ghazali, The

“ ALGhazall, Shifa" al-Chali, 188,

Tueonies oF IsLamic Law 211

well known case of using prisoners as shields falls under this
category.

4, Fourth Category: When the cause is derived by the jurist
and is conforming with the purposes of the law, but it is not
compatible with the general propositions of the law, nor is it
supported by a shahédat al-agl, it is a case of pure gharib, This
case is rejected (mulghd) because it is not acknowledged by the
general propositions or even the texts of the shariah.

‘The category of the mundsib that is compatible with the general
Propositions of the law (muld'im) is divided on the basis of the effec-
tiveness of the ‘illah, If the cause is determined at the lowest level of
the structure of attributes for a hukm at the lowest level of the struc-
ture of the ahkdm, the resulting analogy is of the strongest type. This
is known as giyds al-ma‘nd, It is, in fact, not considered to be analogy
by some, but the implication of the text, and would be acceptable,
it i sald, even to those who reject the principle of giyas as a whole.
‘The attribute here is classified as mu'aththir mundsib. In the next
case, the attribute at the lowest level is affected for a hukm at the
level of the genus. This is the regular form of giyds that is acceptable
to all. Here too the attribute is classified as mu'aththir mundsib, In
these two forms of analogy, it is to be assumed that the attributes
indicated as causes are compatible with the general propositions of
the law, for it is these attributes on which such propositions may
be based. However, this is not necessary, and they do not lose their
effectiveness even if they are not mulé'im. In the third case the at-
tribute at the level of the genus is influenced for a hukm at the lower
level of the ahkam. For this attribute the name muld’im itself is used.
‘The resulting analogy is acceptable to all, according to al-Ghazali.
Some of the Hanafi jurists insist that though they consider it to be
valid, it is not binding upon them to follow it when it is binding
for the Shafi‘ ls.” Al-Ghazall has shown through examples that some
cases designated by the Hanafis as muaththir actually fall under this
category.” This appears to be true, as some of the principles used
by the Hanafites may have been derived by them through such at-
tributes. This category is linked to reasonin, from principle, as has

“This case has been considered ss istidla! mursal by many modern writers, It
is actually a case of mundsib gharib, as sball be shows below.

"Sadr al-Sharf'ah, ol-Towdih, 568.

"ALGhazali, Shifa’ al-Ghalil, 186-87.

212 The Theory of the Purposes of the Law

been stated earlier. The last category of the mundsib muld'im is one
in which the cause cannot be derived directly from the texts, that
is, it is not supported by the shahddat al-asl, and a genus from the
structure of the genera is used for establishing a hukm at the level of
the genus. This is the istidldl mursal or maslahah mursalah.

The structure of these attributes is summarized in figure 12.3.
‘The figure does not reflect some categories mentioned and lacks some
of the details.

12.4.7. The broader principle of maslahah

he above analysis shows that the concept of maglahah proposed by
al-Ghazali is much wider than the method known as istidlél mursal
attributed to Malik. Maslahah is equated here with the mundsib,
which means an attribute conforming with the purposes of law. We
have also seen that even the attributes derived through the text or
ijma’ can be designated as mundsib. The reason is obvious, because
the purposes of the law themselves have been derived from these
attributes, that is, the mu’aththir attributes. In some cases where
such attributes do not conform with the magdyid they are designated
as pure mu’aththir, The wider concept of maglahah and the narrower
method of istidlal mursal, then, stand merged in the expanded form
of analogy. Al-Ghazall, however, insists that he has not introduced
anything new and these are methods of analogy that have been used
by all the schools even if the names they have used for the methods
are different, He gives examples from each school to prove this,

If we treat the mu'aththir as existing independently of the
mundstb, the kinds of analogy accepted by al-Ghazali are four, These
‘are mu'aththir, mundsib, shabah, and tard. Tard is a method where
the correspondence between the existence of the hukm with the ex-
istence of the ‘illah is used for declaring an attribute effective. This
method is not very popular with the jurists, Within this, ‘al-Ghazali
distinguishes two methods, one of which is valid and the other is not.

The validity of giyds al-shabah is disputed by many jurists, How-
ever, al-Ghazali explains that there are three methods that may be
considered to be a part of the disputed giyds al-shabah, but they
are not; that is, they are valid. The first is the category of giyds al-
shabah that is declared valid by al-Shafi' in al-Risdlah. The example
of determining a similarity between an animal hunted during pil-
grimage and one offered as compensation for it has been mentioned
earlier. The second method requires the preference of one attribute

Tneowes or Istamic Law 213

over another, when two conflicting attributes are noticed that can
independently serve as the underlying cause. The third case is where
two attributes are found and the hukm is based on both. In this case,
the hukm may sometimes be associated with one cause. An example
is kaffarah (expiation), which is a worship as well as a penalty. It is
only when the new case vacillates between two texts or rules, resem-
bling one on the basis of one attribute and resembling the other on
the basis of two attributes, when none of these attributes serves as
a valid underlying cause, that the case can truly be designated as
shaboh. In this case the interest (maglahah) being served is not clear,
and the decision depends upon the judgment of the mujtahid, as to
where he finds greater resemblance (shabah),

12.4.8. The purposes of Islamic law

‘The purposes of law are divided by al-Ghazall into two types: dini

,, Of purposes of the Hereafter and dunyawt or purposes pertaining to
this world.”? Each of these is divisible into tahgil or securing of the
interest and ibgd’ or preservation of the interest.”? Tahsil may be
viewed as securing of a benefit (manfa‘ah) and ibga’ as the repelling
of harm (madarrah).* The phrase ri‘éyat al-magdyid (preservation
of the magdgid) is used to indicate both tahpil and ibga’.”* Manfa‘ah
and madarrah here do not depend on human reason, but are what
the Lawgiver has considered to be benefit and harm.”* Al-Ghazali,
therefore, says:

As for mastahah, it is essentially an expresnon for the acquis-
tion of manfa‘ah (benefit) o the repulsion of magarrah (injury,
harm), but that is not what we mean by it, because acquisition
‘of manfo'sh and the repulsion of madarreh represent human
goals, that is, the welfare of humans through the attainment
of these goals, What we mean by maglehah, however, is the
preservation of the ends of the shar'.77

Tt is for this reason that the term “utility,” insofar as it intro-
duces utilitarian concepts, based on the ideas of such thinkers as

Ibid. 159.
bid.

Mid. 140,
TTALGhaxAll, o/-Mustayfa min ‘lim ol-Uyal, Baghdad, 1294 (A.H.), |, 286

24 The Theory of the Purposes of the Law

Jeremy Bentham, is being avoided here on purpose. A comparison
of maslahah with the concept of utility is not the purpose of this
discussion. Further, it is likely to confuse the issue by shifting the
focus from what al-Ghazali is saying.

‘The worldly purposes (dunyawf) are further divided into four
types: the preservation of nafs (life), the preservation of nas!
(progeny), the preservation of ‘ag! (intellect), and the preservation
of mal (wealth)."® When all types are taken together, we have five

imate purposes of the law: din (religion), life, progeny, intellect,
wealth. These five purposes are designated as dardrdt (necessi-
ies) and are the primary purposes of the law. These are followed
yy the hajat (needs), which are additional purposes required by the
rimary purposes, even though the primary purposes would not be
Jost without them. The third category is that of purposes that seek
0 p) in the law.7?

Crucial to understanding the natare of these purposes of the law
is the point that to each category is related a large set of purpones
that supplement the ultisiate purposes. Thus, the dardrdt are sup-
ported by ® number of purposes that complete them and lend sup:
port. Al-Ghazill has not used a specific term for them and we may
call them the supplementary purposes. The same is the case with the
hajat, there are purposes that support the hdjét themselves. These
supplementary attributes or principles are, to use al-Ghasal's ex-
prossion, attached to the “tails” of the two main categories of the
dardrat and the hajdt™ The third category of taysir and tawaneu’
also hat such supporting values. These are called the tahsinat (com-
plementary values). These details are provided by al-Ghazall in his
earlier work Shifa' al-Ghalil®* In his later work that dealt with usil
al-figh as a whole, he has omitted some of these details or has stated
them very briefly. It appears that following this later work some of the
jorists, who followed al-Ghazall, also ignored these details. The mod-
ern writers dealing with maslahah have followed suit, The essence of
‘al-Ghasali's theory is in the detail, which reveals certain dimensions
of the theory not visible in the later work.

The examples provided by alGhazali for these supplementary
purposes show that a major part of the law is covered by these sup:

"Tad. 163,
Ibid,

“Ibid, 162-
"Tid. 172

Tueories oF IsLamic Law 215

Figare 12.4: ‘The Purposes of Islamic Law

[Sivaiementary] [Supplementary] [~ Tabsimat

[Seretewenary] [Sepetemenaer] [Tahumat_]

(Cfexrs | [Ctexrs] [Ctexs] ~

porting purpooes For the jurist these are important, becamse they
determine his methodology and govern his reasoning. To nderstand
the relationship of the different types of purposes with each other,
they have to be seen in the framework of the usual structure of the
categories and genera, At the bottom are the mu’sththir attributes or
the texts themselves, Moving up we go through a large chain of the
categories and genera of the muld im. These serve as the intermediate
goals for the ultimate values, and finally we reach the primary goals.
It would be incorrect to conceive this structure in two-dimensional
terms, because al-Ghazalj emphasizes more than once that there are
different levels or dimensions of the particalar and the general within
this strocture, Nevertheless, a partial picture is attempted in Sgure
124.

If we move beyond the ultimate values recognized as the purposes
of the law, we reach the area.of weaker attributes, which are also used
by the jurists for extending the law. pavers
‘These too are organized in the form Sapna cpr peeey

‘Al-Ghazéh maintained that the total sumber of attribates re-
lated tn the purpases of the law is beyond human reckoning, and if
a jurist were to attempt to count them and to gather them under

216 The Theory of the Purposes of the Lat

general rules or principles, he would be tormenting himself with a1
impossible task.** His teacher al-Juwayni, on the other hand, ha
issued a kind of a directive that an attempt should be made to fram
general principles, As to what is a principle, he states that it ix some
thing that presents a general picture when the details are forgotter
or cannot all be retained in memory. The Shafi'i jurists, therefore, se
themselves the task of framing such rules, maxims, and principles
This led to the development of a new field known as al-Ashbah w
al-Naza'ér, Most of the attributes in these books appear to have beer
gathered from the area of the ashbdh, but some principles pertain
ing to the supplementary goals have also been stated. A conclusive
answer, however, requires further research. Some of the principles ap
pear to have been taken from the earlier Hanafite works. One late
writer, alSulami, appears to focus mainly on the area covered by
maslahah or the mundsib. Thus, he refers everything to these goals,

12.5, The new theory and the methodology of the jurist

In the details of the new theory that have been discussed so far, the
main argument has been that the jurist or judge deciding a case cai
use the method of mundsabah for discovering the law. The mundsil
has been equated with the wider concept of moslahah, Within this
wider concept there are two main methods by which the judge cag
extend the law. The first is the mundsib mu'aththir, which is divided
further into giyds al-ma'nd and giyds al-‘illah. These categories o
qiyds are accepted and used by all the schools and jurists, and they
do not represent the new element in the theory.

‘The second method is that of the mundsib muld’im. This is alsc
divisible into two further methods, The first of these is the muld’in
and the second is the istidldl mursal. These two methods represent
‘the new element in the theory. However, they are not new in the
sense that al-Ghazali has invented them. He has shown through
large number of examples that the jurists before him, including th
Companions of the Prophet, had used methods that could easily
be classified under these two principles. What al-Ghazali has done
is to express them systematically in terms of the methodology o
qiyds. The muld'im, he has shown, has been used extensively and i
acceptable to all those who accept analogy. This is the major metho
underlying the new theory. There is some hesitation, al-Ghazali says

"7ALGhaxd, al-Mustogfa, 8, 321,

‘Tweonigs oF Istamic Law 217

about accepting the method known as istidlél mursal or maglahah
mursalah. He points out that this was acceptable to Malik, but al-
‘Shafi't was hesitant.

12.5.1, The theory in simple terms

After all that has been said, it would be helpful to state the new
methodology described by al-Ghazali in simple terms, in terms that
we can easily understand, that is, somewhat detached from the ter-
minology of the jurists. An explanation is attempted below.

The method of munasabah advocates reasoning from general principles
of Islamic law. In the case of the mulA’im, the principle has been derived di-
rectly from the texts. Such a principle is consistent with the general propo-
sitions of the law and conforms with ite purposes. In the case of istidlal
mural, the principle hax not been derived directly from the texts, but is
‘one that conforms with the purposes of the law and is consistent with its
reneral propositions. Such a principle has to satisfy some further conditions
indicated by al-Ghaaali (these are to follow). This is what can be gathered
from what has preceded.

What remains ¢o be shown is that the principle derived directly from
the texts, that is, the mula’im principle, operates not only at the level of
the goveral propositions of the law, but also at the level of principles of
policy and even moral norms. On the other hand, the principle not derived

directly from the texts, that ix, the mursal principle operates only at the —

level of the general propositions of the law

What, then, has analogy to do with all this? The answer is that anal-
ogy is undertaken when we have two cases falling under two separate, yet
related, principles. One of these cases bears a bukm, while the other case
needs it. To pass the hukm from one to the other, we derive a new principle,
which incorporates the two principles that govern the cases separately. In
other words, the two principles are subsumed under this new principle The
‘hukm from the case under one lower principle is passed to the case under
the other lower principle, with the help of the connecting higher principle.
This shall be clear in what follows

To understand and support this simplified version of the theory,
we will first show how the structures described above appear, in al
Ghazali's view, to the judge or jurist investigating a new case,

218 The Theory of the Purposes of the La’

SRA Gerrmel proseelties, Preteen sa ees ee
‘We have seen that al-Ghazali divided the purposes of the law, or it

designated as the dardrdt, hajat, and tawassu‘ wa taysir, We hav
also seen that each of these categories is accompanied by supplemen
tary purposes. The complementary values or purposes accompanyin,
fawassu‘ wa faysir are called tahsinat by al-Ghazili, On occasions hy
refers to the entire category as tahsindt. As long as the detail ha
bees indicated we may also refer to the third category as tahsinat
After describing these categories and their grades, al-Ghazail look:
at them from a different level.

He says that the mundsib is divided into two main categories

‘The criterion for judging them is that the more we investigate th
attributes falling under the Aagigi ‘agli the greater the convictior
Uhat these are concrete propositions and a suitable (mundsib) sourc
for the law, while the Bhiydli ignd', whon subjected to investigation,
start losing their force and are reduced to mere ethical and moral
norma. Included in the hagigi ‘agli are the darurdt and the hdjat
‘These include the concrete propositions of the law. The khiydli iqna'
include all the tahsindt, which means the complementary ethical and

Cana jue deriv » prince saying ‘that it conforms with the

the affirmative, but there are other conditions. In his earlier work,
‘Shifa” ol-Ghabil, al-Ghazall said that the principle conforming merely
with the tahsindt or the ethical and moral norms cannot be used, un-

))\ Sess it has been derived from the texts. In the case of the hagigi ‘aqlt

® principle that has not been derived directly from the texts can
be used if it conforms with the darirat and the hajét or with their
supplementary purposes, provided a few conditions are met, as whall
be shown later, In his later work, al-Ghaziili excludes the Adjdt from
this concession. He maintains that even in the case of the hdjat the
principle must be derived directly from the texts. The only case left,
bran ens ote wrat in which a principle not derived directly

, but conforming with the dariirdt, can be used by the

tr

Istamic Law 219

‘This shows that there are three things to which a judge may refer
in his reasoning. The first are the ultimate general propositions of
the law or the dartirat. The second level is that of the Aaydt. These
become law only when they are supported by an asl or text, that is,
the principle based on the hajat must have been derived from the
texts. In this sense, they are more like principles of policy indicating

what

recommended and what is not, The third level is that of

the convincing (ignd'i) norms, that is, the area of the tahsindt, the
ethical and moral values. These can be used oaly when auch norms
have been acknowledged by the texts, that is, they are supported
by an agl, as in the case of the Aajét. The judge in his reasoning,

refers to the magayid, which consist of general
rinciples of policy, and the moral norms, in that

order of priority. Tha Law if DERIVED THROUGH AN INTEAFLAY WETWEERN
‘TW GRNERAL PRINCIPLES ON THR ONE HAND AND THR magdpid al-sharf'ah ON
‘Tom OTHER,

— It would be helpful to refer briefly to modern law at this stage
to indicate the similasity between the modes of reasoning of judges, “>
whatever the legal system. Melvin Eisenberg, in his book The Nature» *
of the Common Law, after referring to some modern analyses of law,

states:

I will show that none of these analyses properly accounts for
common law adjudication, Under the institutional principles
that govern the common law, social propositions are relevant
in all cases. To put this differently, all common law cases are
decided under a unified methodology, and under this method-
ology social propositions always figure in determining the rules
the courte establish and the way in which those rules are ex-
tended, restricted, and applied. Easy cases are not cases that
‘are controlled by specific doctrinal rules, but cases in which a
relevant doctrinal rule is supported by applicable social propo-
sitions,

\e.[ T]he judge is not free ...to employ those social proposi-
tions he thinks best, or to establish those rules he thinks best,
on the basis of his own moral and political convictions, Rather,
the judge is under an obligation to employ only those social
propositions that satisfy certain criteria, and to establish only
those rules that are generated by the application of the insti-
tutional principles of adjudication.“

“'Biscnberg, The Nature of the Common Law, 2-3.

A
+44

220 The Theory of the Purposes of the Law

Eisenberg deals at length with what are the main social proposi-
tions that a judge takes into consideration. These propositions relate
~ to “moral norms, principles of policy, and experiential propositions,"
“and experieatial propositions are “propositions about the way the
world works."* This is not all as *[mjost moder anaes ofa me

agitation cn agely by Cevat e their treatment of ¢!

ween doctrinal propositions and social propositions."®*
Fon propositions “purport to state legal rules and are found in
or are easily derived from textual sources that are generally taken to
express legal doctrine.”*?

12.5.3, The new theory and the principles employed

General principles have occupied a prominent place so far in the dis-
cussions, not only in this chapter, but also in the preceding chapter,
Principles are mainly of three types. First come principles that are
stated explicitly in the texts. These are like the principle about the
prohibition of ribd emerging from a Qur'énic text, as well as its sup-
plementary principles stated in the traditions. This was discussed in
the methodology of the Hanafites in the previous chapter. Another
example from the traditions is thi bility for profit is based on
a corresponding liability for bearing loss."** These principles can be
termed as the mu'aththir mundsib aiin, bee because they are stated
in the texts and the underlying under them con:
form with the purposes of the law. It will be remembered that even
if these principles do not conform with the purposes of the law, they
‘are still effective (mu’aththir), because they have been explicitly men-
tioned in the texts. The number of principles stated explicitly in the
texts are many, but limited nevertheless.

The second category of principles are derived principles. This
category of principles has been called muld'im by al-Ghazali, The
rmula'im is a principle that has been derived directly from the texts,
In a hypothetical example discussed earlier, we saw that the under-
lying cause of “minority” was generalized to yield the category of

“hid. 14.
thid. 37,
“Ibid. 2
"Reid. 1
Abtharayu bi al-daman,

Turories oF IsLaMic Law 221

“inability (‘aj2)."* This was further generalized to yield the prin-
ciple of “necessity (darirah).” These generalized categories are no
longer specific underlying causes, but are flexible general principles,
In fact, the determination of the ‘illah itself is a kind of general-
ization. This was seen earlier while distinguishing giyas al-ma'nd
from giyds al-‘illah. Qiyés al-ma‘nd is the generalization of a spe-
fy rat literal extension. The cases, besides the
one ically mentioned in the text, are said to be included in the
meaning of the text. The specific word is now acting as a general
word, In giyds el-‘illah generalization is not, possible through literal
extension, but is achieved by determining an underlying cause, which
acts like a genus for all the cases to which the hukm will be extended.
‘Thus, if the text says that the minor boy is to be subjected to the
hukm of wildyah, the underlying cause of minority will have to be de-
‘termined to extend the hukm to a minor girl, married or unmarried.
‘The genus of minority covers all these persons now with respect to
the Aukm of wildyah, because it stands generalized. There are two
characteristics in this determined ‘il/ah that are not found if the gen-
eralization is extended to a higher genus. The first is that the ‘illah
is always something mentioned in or indicated by the text. The at-
tribute discovered thus is usually a stable cause that does not waiver
with time, place, or persons. The second characteristic is that the
generalization involves a single level of generalization, This is what
makes the ‘illah more like a rule than a general principle. These are
‘the characteristics of what we have been calling strict analogy.

‘The characteristics of the derived principle called muld'im differ
from those of the ‘il/ah on both counts, Thus, it generalizes the rule
at a higher level than that of the ‘ilah. For example, it recognizes
that “minority” is not the true reason for extending the hukm of
wildyah, it is, in fact, the inability of the minor to give a legally valid
consent. It, therefore, moves one level up and determines “inability to
consent” to be the cause, This brings us to the second attribute. The
generalization at this level is based on the hikmah (wisdom) behind
the text. The relationship between the ‘illah and the muld’im related
to it is that the muld'im provides an explanation for the ‘illah, The
attribute of inability to consent is, therefore, a kind of explanation
for the ‘illah of minority. Such a cause is avoided in strict analogy
because it is not very stable for certain cases. For example, if the
cause of inability permits us to extend the hukm of wildyah to the

See Sadr abSharfah, al-Tawdth, i, $72.

2m The Theory of the Purposes of the Law

ma'tih or a somewhat retarded person, who is not a minor, the cause
may not hold true for all such persons, depending on the intensity
of the handicap. If the cause is generalized at a still higher level, we
arrive at the attribute of “necessity,” and this enables us to extend
the hukm to the safih (prodigal, spendthrift). When this person is not
a minor, there might be some injustice involved if he is not allowed
to do what he likes with his fortune. It is for this reason that Abd
Hanifah does not permit the application of this rule beyond the age
of twenty-five. The derived principle may, therefore, require the jurist
to focus on the result of his ijtthdd, and not on the derivation of the
correct cause alone.

What, then, is the relationship between Cer rable ta
is, the ‘illah and the general principle that is’ ikenah
(wisdom). Perhaps an explanation from modern law about the rela.
tionship between general principles and specific rules would be more
helpful here, Melvin Eisenberg says:

When principles and rules are conceived in this way, principles
may seem as explanations for rules, in the sense that we com
monly invoke general propositions to explain thove that are
more specific. However, the force of principles is not merely
explanatory. Principles, like rules, are binding legal standards,
and often determine results without the mediation of rules.9*

In exactly the same way the principles based on hikmah are con-

sidered as binding law, and not mere explanations, in al-Ghazill’s

theory. Further, they we always determined results without the
rules

al-Shari'ah for the Hanafites, What, then, is the new element in aj:
Ghaziili’s theory? He insists that such generalized rules can be ap
plied only if they meet two conditions, Perhaps, it is implied that
these conditions will make an unstable cause based on the hikmah
more stable and in tune with the rest of the law. The first condition
is that these principles should conform with the purposes of the law,
that is, they should be mundsib. Second, they should not clash with

“Ibid, 572.
“Eisenberg, The Noture of the Common Low, 77.

Tueories oF IsLamic Law 223

‘the general practices of the law, that is, they should be consistent
with the rest of the law. This is the principle known as muld'im in al-
‘Ghazali’s terminology. This shows that al-Ghazali, in fact, restricts
the uncontrolled use of the hikmah for the derivation of the principle,
by stipulating the conditions of munésabah and muld’amah.

We have said that the Hanafites have been using such principles
from the beginning, and that this has been acknowledged by Sadr al-
Shari'ah. Al-Ghazali shows through examples that the Hanafites have
been using the muld'im principle all along, but have been calling it
mu’aththir.? The Hanafites, like all jurists who employ general legal

‘used these principles in two ways. The first is reasoning
from principle in which a case is considered as falling within the ambit
‘of the general principle. This Is recognized indirectly by al-Ghazali.
He describes a case related from Aba Hanifah and remarks that it is
‘not based on analogy, but on the assimilation of the particular under
the general—dukhul al-tafsil taht al-jumlah.®® He then proceeds to
show how the proposition is constructed and the conclusion drawn,
The other way these principles were employed was through analogy.
‘This method forms the foundation of al-Ghazall's theory.

The third type of principle is the mursol. This principle is not
derived from the texts, but seeks its authenticity through mundsabah:
and muld’amah, that is, it conforms with the purposes of the law and
is consistent with the rest of the law. These conditions are expressed
by al-Ghazali in a different way for considering a number of cases
that he uses as examples. The examples given by al-Ghazali can
easily be mistaken for examples of this principle, the istidld! mursal.
However, most of these are examples of the gharib that lies on the
margin of the proper istidial mursal and the pure gharib, a principle
not acknowledged by the Islamic law. He rejects most of them. The
conditions that he rephrases for showing how the mursal principle
falls under the approved category are:

# It should not be gharib
@ It should not clash with the nagg (text)

The basis for appears to be the wider coacept of literal interpretation in
the anafite aystem known as doldlet al-nays, which readers the detived genus
here as having been implied by the text rather than being derived. Exploring
this idea further would unnecessarily prolong the discussion, For this method
of interpretation see Babr ab‘Ulém, Fawétuh al Rahamat, on the margin of al-
‘Mustaafo, ii, 293-94.

* ALGhasall, Shifa’ 186-87

24 The Theory of the Purposes of the Law

¢ It should not attempt to alter the implications of the texts,
that is, the general propositions and the principles of the law.

The effects of these conditions can be seen better under the dis-
cussion of analogy by the use of these principles, because al-Ghazali
‘was focusing on analogy rather than the assimilation of particular
cases under the general proposition.

12.5.4, The new theory and analogy
Before attempting to explain how analogy really works within the
theory of mundsabah, it would be helpful to refer to one type of
analogy undertaken in the common law. The reader is invited to
note the similarity between the reasoning of Muslim
modern judge. Defining this mode of analogy in the law, which is
designated as “consistent extension,” Eisenberg says:

One mode of reasoning by analogy is as follows A procedent
court has announced rule r, which in terms covers matter X,
‘The deciding court is now faced with a case that concerns mat-
ter Y, Matter ¥ does not fall within the stated ambit of rule r,
Since matters X and Y are not identical, treating them differ-
cently might be consistent as a matter of formal logic. However,
the deciding court determines that treating matters X and Y
differently would be inconsistent as « matter of adjuditative
reasoning, because neither applicable social propositions nor a
deep doctrinal distinction justifies different treatment of the
two cases. In effect, the deciding court determines that the
statement of the announced rule in the relatively narrow form
+, rather than in the relatively general form R, was or has be-
come adventitious, ...[T]he deciding court concludes that the
tule r, which covers only matter X, should now be deemed only
‘s special case of the rule R, which covers both matters X and
Y. It therefore teformulates the announced rule by generalizing.
it and decides the case at hand accordingly.

This is exactly the form of analogy that has been described in the
examples that have preceded. To recall our hypothetical example, the
- hukm of wilayah applies to minors. This does not cover the insane
person, who is not a minor. A general rule is formulated that is based

"Eisenberg, Nature of Common Law, 87-88,

Tueories oF Istamic Law 225

on the inability to consent. The rule about minority now becomes a
special case of the generalized rule of “inability.” The hukm of wilayah
can now be extended to the insane person.

‘This form of analogy is undertaken in relation to the muld'im
‘as well as the istidlal mursal. We shall focus on the istidlal mursal
through examples given by al-Ghazall, The first example shall be
considered to show how analogy is undertaken within the framework
‘of the purposes of the law. The second example will be discussed
because it has been misread by some later jurists. This example ap-
pears to have caused some confusion in understanding the meaning
‘of maglahah mursalah. It is actually an example of the gharib, and
al-Ghazali’s purpose is apparently to show how such a case can be
Justified on the basis of additional conditions.

First example of analogy—istidlal mursal

‘The first example is that of the istidlél mursal proper, which satisfies
the three additional conditions stipulated by al-Ghazili, and that
were listed in the previous section. These conditions are that the
mundsib should not be gharib, it should not conflict with a text, and
it should not attempt to alter the implications of the text. The case
that follows is well known, and the reader may already be acquainted
with it. The purpose, however, is not to point out the case, but to
show how analogy is undertaken by generalizing the principle,

‘The case was decided by ‘Ali the cousin and son-in-law of the
Prophet. The drinking of wine is prohibited by the texts, however,
no fixed penalty Is prescribed. The penalties that appear in the tra-
ditions vary and are not fixed. He is reported to have said:

He who drinks is intoxicated; he who is intoxicated raves; he
who raves slanders; I (therefore) uphold the penalty of the
slanderer for him.

‘This, according to al-Ghazali, is based on the form of analogy
known as istidldl mursal or maslahah mursalah, because the princi-
ple in the above statement is not mentioned in the texts, nor can it be
derived from a specific rule. The principle under which the penalty
of slander gadhf is covered is that the “person who slanders is to be
awarded the penalty of gadhf (slander).” This is explicitly mentioned
in the Qur'an, and the penalty is eighty stripes. Al-Ghazali says that
this principle is mundsib, that is, it conforms with the purposes of
‘the law. However, if we attempt to apply it to the case of the person

226 The Theory of the Purposes of the Law

who drinks, it does not appear to be muld'im (compatible) with the
general practices of the law. The reason is that it would amount to
giving him a penalty for an offense that he did not commit; namely,
qadhf. Al-Ghazali maintains that when probed deeply we find it to
be muld’im. The law, he says, often assigns the outward indication
(mazinnah)®® of a thing the hukm of the underlying intended act or
happening. Thus, penetration is considered to stand in place of ac-
tual ejaculation for purposes of bathing to achieve ritual purification;
buldgh (the age of puberty), the outward indication of of discretion
and maturity, is assigned the hukm of actual discretion to determine
majority; sleep ix assigned the hukm of ritual impurity, because one
who sleeps usually becomes ritually impure due to various reasons. In
such cases, the reasoning would be: he who sleeps becomes ritually
impure; he who becomes ritually impure performs ablution; there-
fore, he who sleeps is to perform ablution (for the next prayer). This
is the same as saying: he who drinks is intoxicated; he who is intoxi
cated raves; he who raves slanders; therefore, he who drinks is to be
awarded the penalty for slander. This reasoning leads to the conclu-
sion that drinking of khamr is the outward indication of the loss of
one’s senses that leads to slander and finally to enmity and hatred.
Ava punishment for slander has been provided by the texts, it should
be awarded for drinking wine, which is its outward indication.

‘The preceding reasoning indicates how a new, and much wider,
principle is formulated. PENALTY FOR
‘cats floun » ee esta We acai Far
AS 0 THE EXAMPLE QUOTED FROM TH LAW Two PAGES ack. This gen-
eral principle is contained in the statement attributed to the fourth
Caliph. The larger principle now includes both cases of gadhf (slan-
dor) and shurd (drinking). Further, we notice that this case meets
all three conditions prescribed by al-Ghazali, that js, it is not ghar,
it does not conflict with an explicit text, and it does not alter the
implications of the general propositions of law. The case, then, falls

"within the principle of maglahah mursalah proper.

Second example of analogy—gharib

‘The second example is being stated here to show the operation of
the three conditions stipulated by al-Ghazal, as well as further con-
ditions on the basis of which a case that appears to be based on

"In the literal sense, it would be the outward location of the hukyn.

‘Turorigs oF Istamic Law 227

the mursal principle, but which is actually ghari6, may be accepted.
‘The case is purely hypothetical. It is the well-known example of the
enemy attacking Muslims and using Muslim captives as shields. The
example appears in al-Ghazali's later work where he has stated the
whole theory very briefly. This has caused some confusion in the
work of the later jurists, especially Sadr al-Shari'ah, who does not
take into account the various ways al-Ghazali uses the term gharvb,
AL-Ghazall designates anything that is not mundsib or is not muld'im
as gharib, He does not call the istidldl mursal ax gharib because it
is both mundsib and muld'im, as has been shown in the previous
sections. The gharib principle may be a gharib that is not mundstb,
or it may be a gharib that is mundsib, though not muld'im, but is
supported by an as! (text), or it may be a gharib, that is, mundeib,
but is neither muld'im nor is it supported by an asl. The present case
resembles the last category, Al-Ghazali himself calls it gharib, The
present case may be called mursal gharib because it is not supported
by @ text and is also inconsistent with the rest of the law, that lv,
‘it ie not muld'im, As compared to this, the istidld! mursal is based
on the mursal muld'im, as in the previous example. Tws case, run
YORE, VIOLATES AbL THOURE CONDITIONS THAT AL-GHAZALI HAS SrmPULATED for
maglahah mursalah. First, it conflicts with the texts that clearly lay
down that no one is to be killed intentionally. Second, it violates the
general propositions of the law, which prescribe that only those per-
sons can be killed who have committed an offense. It is, therefore, not
mula im, which means It is gharib or unacknowledged by the law. By
permitting the killing of Muslims under certain circumstances due to
necessity, Jt attempts to alter the meaning of the implications of the
texts, which is the third condition stipulated by al-Ghazall
‘Al-Ghazily appears to be saying, although he does not say it
explicitly, that even such a case may be drawn into the fold of the is-
tidlal mursal, which is muld'im, but with additional conditions, These
conditions are that the case should lie in the area of the dardrat (ne
cepsities), it should be definitive (gat), and it should be general
(kullt). "This hypothetical case assumes that the eatire Muslim com-
munity is being attacked at once. If the entire community is destroyed
or eliminated, Iefam as a religion will disappear, Thus, this case lics
in the area of the darurdt, as it affects the first primary purpose of
‘the law, that is, the preservation and protection of din, The secoud
assumption is that we are certain that if we shoot at the disbeliev
ers, who are using the Muslim captives as shields, they will be driven
away and the Maslisns, at least some of them, will be saved. This

228 The Theory of the Purposes of the La

certainty about survival makes the case definitive (gat). The third
‘assumption is the same as the first that the entire Muslim community
is being attacked. Thus, there is the interest of a few Muslims pitted
against the community as a whole, and the latter is to be preferred.

With these three conditions, then, this mursal gharib may be
accepted. Some other cases that are gharib like this case, for example,
persons in a boat who are cast out at sea kill one companion by
drawing lots are rejected by al-Ghazali. These cases do not affect the
existence of the entire community.

In any case, this case bothers those who consider maslahah mur-
salah to be the major breakthrough made by al-Ghazali, and who
consider this case to fall in the category of the regular istidlal mursal,
when it does not. In my view, this is incorrect, The major strength of
thats shat Dea inn So wld Sn eth eee
use the term maslahah, which is a wider concept, to mean maglahah

mursalah, Maslahah mursalah is a minor concept within the larger
concept. The larger concept establishes an organic relationship be-
tween the principles of the law; its purposes, and reasoning by anal-

ony.

In the law too reasoning from principles is closely linked to reason-
ing by analogy, which is incorporated within the larger methodology.
We may conclude by quoting Melvin Eisenberg again:

Reasoning by analogy in the common law is sometimes thought
to consist simply of comparing airnilarities and differences be-
tween cases, of of reasoning “by example,” If these conceptions
were correct, reasoning by anslogy would be qualitatively dif-
ferent from reasoning from precedent or principle, which both
turn on reasoning from standards, These conceptions are, how:

‘ever, incorrect. nalogy differs from reasouing,

from precedent in form.”

Tl exactly what al-Ghazali's theory shows us. It is a theory
that general principles and the

themselves the primary neces-
of policy, and the moral norms approved by the

Tneories oF Istamic Law 229

12.6. The new theory and the development of the law

In the previous chapter we had concluded that the systems of inter-
pretation or theories of law tended to be more and more literal. Even
‘on the basis of this conclusion, it could not be said that the law had
become rigid, as is maintained by Western writers, on the basis of
‘such literal tendencies. The reason for this was that some of these
theories, especially the Hanafite theory, employed general principles,
and it would not have been difficult through such theories to extend
the shari‘ah law into the area taat had been taken over by the state.

In this chapter, the idea of the literalist influence was explored
further, by suggesting that it is a literal system of interpretation
that falls back on the purposes of law and flexible ultimate values.
To emphasize this point, the traditional theory, or al-Shafi'i’s theory,
was examined. It was indicated that if the rules of literal interpreta
tion determined by al-Shafi't were combined with the narrow forms
of qiyds that he approved, it would indeed be difficult to extend the
law very far beyond what is laid down in the texts, This point was
further emphasized by showing that the majority of the texte used
by the jurists related to the ‘ibadat or the laws of worship and ritual.
The remaining focused mainly on the personal law, like marriage,
divorce, and inheritance. Finally, in this chapter, al-Ghazali's theory
was analyzed in some detail. This theory is based on the interplay of
general principles and the purposes of law, and provides such flexibil-
ity for the jurist that the law based on the texts can be extended to
‘any conceivable situation that may face the Muslim community. One
ignificant point that emerged from this theory was the insistence of
al-Ghasdli that what he had stated was nothing new. The methods
elaborated by him had already been employed by the jurists before
him. He only expressed them systematically and imposed some fur-
ther conditions. Why, then, was the law not extended beyond what
is contained in the books of the jurists?

Even if it is assumed that the earlier jurists had not used the
methods proposed by al-Ghazali, the question as to why they did
not extend the law after al-Ghazali's time is not very clear. Armed
with the new theory, Muslim jurists could have extended the law to
all activities, whether in the public or the private sphere, in a very
short time, not to speak of five hundred years or more. After all,
we do find al-Ghazali dealing with ease with matters of taxation,
the rights of the accused, and several other areas that appear to
have been monopolized by the state. The jurists did not move in

230 The Theory of the Purposes of the L

this direction, and the major areas within the domain of the juri
remained very much the same that they were in al-Shaybani’s wor
‘This brings us back to the question of the two spheres of the law.

In the light of all that has been said in the previous chapters a
the present, the only conclusion we can draw is that the jurists
not extend the law intentionally. Their involvement with the part
the law that revolved very closely around the texts was all by desig
‘Not only this, the literalist trend in the theories of Islamic law refle
the desire of the jurists to bring this limited area of the law clos
and closer to the texts, to discover the true intention of the Lawgiv
‘This trend began with al-Shafi'T and went up to the Hanball scho
In the design of the legal system conceived by the jurists, they appe
to have left everything that was beyond the law based directly on t
texts to the ruler. To ensure that the laws made by the ruler we
developed in accordance with the general principles of the shart’
the jurists imposed a fundamental condition: that the ruler must
& mujtahid.

‘The part of the law with which the jurists were concerned h
been developed by them with such thoroughness that a parallel 1
it cannot be found in buman history, that is, excluding the mode
age. It fally covers the areas that it was intended to cover, in fact,
have four or more versions of it. If the ruler was assigned the du
of framing laws and developing the legal system, which was outsi
the jurisdiction of the jurists, then, it is the work of the ruler in ea
age that is to be judged for effectiveness, and not that of the juri
Did the ruler in each age establish laws and legal institutions in }
own sphere of ? Did this law conform with the dictates of t
shari'ah or was it based on expediency and power, that is, was }
logal policy (siydsah) ‘Adilah Gen) cx veel palimah (tyrannical)'

From another perspective, for the part of the l
linked closely ) met, the new theo
and the very useful. The greate
need for this theory of the purposes of the law would be for the l
that fell within the jurisdiction of the ruler. Many of the exampl
given by al-Ghazili are relevant to this part of the law. Ax has be
indicated above, the strict theory formulated by alShafi'l was n
flexible enough to deal with problems that were not tied closely
the texts. Al-Ghazali, therefore, framed a theory that could hane
this task with ease.

Al-Ghazali’s theory c..ablishes a methodology for the w
area of the law that is waiting to be developed by the Muslim sta

Chapter 13

The Refinement of the
Purposes of Law

‘The Islamic legal system evolved gradually over the ages and reached
full maturity in five centuries of its existence. A large number of
theories of interpretation were formulated and practiced by jurists
during this period. Out of these, we have tried to understand three
main trends or theories. There were other variations of these theo-
ties, but these did not gain popularity among the jurists. The last
theory developed by al-Ghazili emphasized the importance of the
purposes of law and the need to consider the texts collectively to
benefit from the spirit of the law. It will not be an exaggeration to
say that the magdgid al-shari‘ah became more popular with the ju-
rists than the theory itself. Most jurists, who followed al-Ghazali,
occupied themselves with the refinement of the magdgid. Al-Ghazali
had opened a new field for them. Al-Razi, for example, presented
a critical analysis of the magdsid, and his analysis demands a sepa-
rate exhaustive study. Sadr al-Shari'ah was fascinated with them and
tried to asses the Hanafi position with respect to the magdgid, but it
was the Maliki jurist al-Shatibl who constructed his exhaustive study
on interpretation around the magasid. The attempts by these, jurists
led to further refinements in the understanding of the purposes of
law and also revealed their significance for Islamic society as a whole.
Our study of legal theories will not be complete if we do not
explain the significance of the magdgid for Muslim society considered
collectively. The emphasis in this chapter will, therefore, be on the
structure of the magésid and how they govern the legal, political,
and economic systems of the larger system known as the Muslim

y

j

n

7

ee

t

232 The Refinement of the Purposes of Law

community. Before this is attempted, it would be useful to assess the
progress we have made in the previous chapters.

13.1. Tying the strands together

Tt has been shown in the previous chapters that the story of Islamic
legal theory may be narrated in terms of the use of general principles
and the interplay between these general principles and the purposes
of Islamic law. Principles were used by the earlier jurists, the Malikis
and the Hanafis, and this led to « rapid development of the law,
as is witnessed in the works of al-Shaybani and the Maliki jurists,

agiThe use of general principles, and the accompanying flexibility in

“a Interpretation, created an impression that the jurists were legislating

© on their own, that is, following ra'y, and that they were evading the
literal implications of the texts of the Qur'én and the Sunnah, This
led to a movement that was reflected in the subsequent antagonism
between the Ahi al-Hadith and the Abi al-Ra'y, In addition to this,
the state appears to have assumed exclusive jurisdiction over certain
areas of the law, by the time the Abbasids came into power. This
was that part of the law that was neither mentioned explicitly in
the texts nor could it be derived directly from them through the
strict methods advocated later by the Ahl al-Hadith, The impact
of those-two factors, that is, the shrinking role of the jurist and
the movement of the Abl al-Hadith, was that the jurists were now
confined to interpretation, and in some cases adjudication, of a part
of the law that could only be discovered directly from the texts,

‘As the bulk of this law related to worship, personal law, and to
the hudid penalties, the interpretation required from the jurists was
limited, The jurists, as well as the Abl al-Hadith, appeared now to
focus more strictly on the true intention of the Lawgiver, as the larger
affairs of state were no longer their responsibility. The true intention
of the Lawgjver in their view, as already indicated, was to be found
in the literal meaning of the texts, and flexible general principles did
not have an important function to perform, To fulfill this limited role,
al-Shafi'l framed his theory. His theory emphasized literal methods
of interpretation limited forms of analogy. The theory did not
eliminate, but did restrict the use of general principles as advocated
by the Hanafis, especially when they dashed’with the literal meaning
of traditions, Mis theory took some time to strike roots, and over a
period of two centuries, was able to provide a somewhat different
version of the existing law, but it did not produce any structural

Tueories oF IsLamic Law 233

changes in the law, The role of the jurist during this time appears
to have shrunk even further, as some of the discussions found in al-
Shaybant’s works were no longer part of the regular manuals of law.

‘Two centuries after al-Shafi'l proposed his theory, a renewed in-
terest in general principles is witnessed in Islamic legal theory. Sur-
prisingly, the initiative is taken by some jurists of the Shaifi'ite school,
‘a school whose founder was the first to prefer literal interpretation
‘over the use of general principles. The real reason for this renewed
interest is difficult to determine. It could have been political, and
it could be linked to the revival of Muslim sciences as a whole, an
idea that appears to be popular with al-Ghazali. Is it possible, we
may ask, that with the breakup of the Islamic empire into smaller
sultanates, the jurists hoped that they would have a greater role to
play in the affairs of the state.and the framing of laws in the area that
had up until then fallen within the jurisdiction of the filer alone?
There is no definitive reply to this question, though the sultdn does
Joom large in the discussions found in the works of al-Juwayni and
al-Ghazali, because most of the examples provided by al-Ghar” * deal
with the law that was within the jurisdiction of the imdm, ‘1 \ haa
already been discussed.

In any case, the first proposal for the discovery of general princi-
ples came from al-Juwayni, as has been shown in the previous chap-
ter. The jurists who followed him took up work, at his insistence,
in two directions. The first was the recording of principles that were
stated in the form of maxims. Some of these principles were derived
from earlier Hanafi works. This area of the law may be classified un-
der the juristic art of distinguishing cases, that is, cases that appear
to fall under one principle, but are governed by a different principle.
Although works on al-Ashbah wa al-Naza'ir are more popular, the
most important work in this area is al-Furig by the Maliki jurist
al-Qarafi.

‘The second direction, in which the jurists took up work, was that
of the magdgid, This work was undertaken, and fully developed, by
al-Ghazali in the form of a theory. This theory, as described in the
previous chapter, explained how general principles interacted with
the purposes of law to yield a rule, and how these general princi-
ples and purposes related to the field of al-ashbah wa al-nazd'ir,

234 ‘The Refinement of the Purposes of Law

the derivation of law through methods proposed by him. The reason
‘could be that these jurists were still focusing on the limited role of
the jurist, while al-Ghazali was looking ahead into the future, The

yurposes of law did not have a real function to perform in the lim-
Gis which the jurists operated. The result was that the
later discussions ignored al-Ghazall's theory taken as a whole. These
discussions focused on the magagid in isolation,

One jurist who was fascinated by the idea of the magéyid, and
who realized their importance in explaining the general posture of
Muslim society and the nature of the social system, was al-Shatibt
(d. 790/1388). He devoted a comprehensive work to the subject,?
ALShatibi’s refinements of al-Ghazail's ideas could not be put into
practice. The reason is generally attributed to taglid and the closing
of the gate of ijtthdd, but to our mind the true reason lies in the
changing global scene. Muslim states had by this time lost much of
their political and military power. Western nations were gaining in
strength, and were gradually able to subjugate and colonize most of
‘the Muslim world. Laws derived by the jurists continued to remain
in force, at least in the area of personal law, but the laws made by
Muslim rulers were abolished and were replaced by Western legal
systems.

‘The work of Muslim jurists on legal theory and the purposes of
Islamic law lay dormant for a few centuries; their evolution slowed
down, but research did not come to an end, In recent decades research
on Islamic law has increased giving us an opportunity to establish a
link between the purposes of Islamic law and the modern world,

In this chapter, an attempt will be made to forge this link, Re-
liance for this purpose will be placed on al-Ghazill's work as well
as on that of al-Shatibi. It may be mentioned, however, that most
of the ideas found in al-Shatibi's work are really an elaboration of
-al-Ghazaili’s ideas. In the following pages, then, we shall try to iso-
ate the purposes of Islamic law from the legal theory proposed by
al-Ghazili. The study of these purposes within this legal theory high-
lights their significance for the legal system. Isolating the magdsid
from this legal theory and considering them as the goals of the whole
Muslim community itself is expected to throw light on the signifi-
cance of the magdgid for the social system. This is what al-Shatibi

‘His other major work al-I"tisére also contains important sections on the prin-
deo matlab, hong with» member of imported example hat eetate the

‘Tueonies oF Istamic Law 235

did, The first task, therefore, is to see how the magasid emerge from
the texts. The underlying basis for this is the assumption that the
Lawgiver has laid down the laws in the interest of Man. This implies
that the law as well as the goals of the sharf‘ah are always working
for the interest of Man. After explaining this, we shall discuss how
these interests are secured through the interaction of the magdgid in
a determined order of priorities.

The jurists derived the magasid in a highly organized structure,
yet it is a relatively new field when considered within the whole span
of Islamic legal history, and there may be some inconsistencies in the
structure that may offer an opportunity to modern scholars for rein-
terpretation and further refinement, A few representative points will
be discussed to indicate this. In a final section the Muslim community
will be considered as & general-purpose system, a living organism,
that has the magdgid al-shart'ah as its goals. Within this section, we
shall try to show that the magdgid provide an organized system of
norms and values for the social, legal, political, and economic sub-
systems of the Muslim community, This discussion is expected to
indicate the kind of community that is postulated by the magdsid,
how this community maintains internal equilibrium, and how it views
the rest of the world.

13.2, Magdsid al-shari‘ah and the texty

‘The primary goal of the shari‘ah, according to most jurists, is to free
Man from the grip of his own whims and fancy, #0 that he may be
the servant of Allah by choice, just as he is one without it.? This
idea is supported by a number of Qur'anic verses. To strengthen this
primary goal, the purposes of the shari‘ah pertain to this world as
well as the next, and both have the interest of Man in sight.? There
exists aslight disagreement among Muslim jurists on whether the law
has been laid down with the interest of Man, ‘he question
was raised by al-R&zi, who gives detailed, and often mind-boggling
arguments, to show that there is no causal relationship between the

*ALShatib, i, 168:
Ds aK ge alge Kole pe a 1S] See All ay ep All all
West D ae yo Ist

“Tid. i, 6

236 The Refinement of the Purposes of Law

provisions of the law and the interest of Man.‘ He does concede,
however, that though no causal relationship can be established be-
tween the interest of Man and the provisions of law, both are seen
to be lying side by side. Thus, he agrees that there is no harm if the
interest of Man is used as the underlying basis for a provision of law.

‘This debate was explained through a simple example in an earlier
chapter in this book; there is no harm in repeating it, The example
used was that of a factory producing something. In any factory, it
is obvious that the sole purpose is the creation of a product for
which the factory has been established. Every directive issued to the
workers is intended to enhance the quality of the product or to create
it on time, or to create a product that is more useful, or to increase
its quantity. The factory does not exist for the workers, but for the
creation of that product, However, the effective production of goods
requires that the interest and welfare of workers be kept in view,
because it will lead to a better product. If the worker performs well he
is rewarded or promoted, because he is in harmony with the process
leading to the ultimate product. If he does not perform well, he ia not
rewarded and may also be punished for a breach of discipline. The
factory does have laws or rules to regulate the activity of the workers,
‘These laws are laid down primarily to ensure an effective production
‘of goods, though the laws may indirectly serve the interest of the
worker,

In understanding the issue of the interest of Man we may, there-
fore, ask: Is Man the final product of this universe created by Allah,
or is the purpose of this universe something larger, larger than Man?
If Man is the sole purpose, then, all laws must have been made to
serve his interest. On the other hand, if the purpose of the creation
of the universe is something other than Man, then, is Man in the
position of the worker, a servant of Allah (‘abd Alléh), who is to be
rewarded if he performs well and punished if he misbehaves? The
laws in this case would appear to be lying side by side with the in-
terest of Man, as al-Razi maintains, though they are actually serving
‘some larger purpose. On the other hand, if Man is the sole purpose
of the universe, the laws would be laid down to serve his interest
alone. Thus, there would be a causal relationship between the laws
and the interest of Man. In either case, the jurists agree that the
interest of Man may be used for determining the underlying basis

‘“Fakhr sl-Dio al-Rést, olMoheal ff ‘Item ol-Uyal, ms. Peshawar, Maktabah
Mashrighyah, Dar a-‘Uldm ab-lelimtyah, No, 630-B, fobs, 203, a, b.

‘Tueonies oF Istamic Law 237

for @ provision of law, and this interest may be kept in view while
‘extending the law to new cases. This assumption forms the basis of
the doctrine of maslahah, and of al-Ghazili’s theory of law discussed
in the previous chapter.

Al-Shatibi maintains, however, that this discussion has no real

i as far as the purposes of law are concerned. The rea-
son is that the purposes of law have been determined from the
texts through a process of induction (istigrd’) rather than through
deduction.® This is the reason why the magdgid are considered defini-
tive (qat‘f), and can be relied upon without a doubt, and the same
pattern is to be found in the other details of the shari‘ah.” He quotes
a large number of verses of the Qur’an to show how the ultimate
purposes are indicated by the texts,

‘The idea that the magdyid have been derived through a pro-
cess of induction from the texts, and are therefore definitive, runs
throughout al-Shatibi's work. He distinguishes the magdgid from the
general principles of law and the principles of interpretation through
a precise terminology. He uses the terms al-ugul al-kulliyah or kulliyat
al-shari'ah to refer. to.the magdgid as distinct from other terms like
ugdl al-figh, gawdnin ugiliyah, and gawd‘id al-figh, which are used
to refer to the sources of law, the rules of interpretatio m, and the
general principles of law.* ——

The purposes of law, in al-Shatibi's view, are of two types: those
that relate to the intention of the Lawgiver, and those that relate to
the intention of the subject.* The fundamental rule for the purposes
of the subject is that his objectives must conform with the intention
of the Lawgiver.'® It is through the interaction of the two intentions
that human actions are determined. The present study will focus on
the purposes of the law that relate to the intention of the Lawgiver,
and any reference to the purposes of law will refer to such purposes,

SALShatibt, al Muwdforat, il, 7.
“Bid.

"Mid.
Ob hh ahs fal Le Gallon Je ON Ua Je aL ZY Jo by
RA Joel em GA AN

238 The Refinement of the Purposes of Law

‘The purposes of law as determined by al-Ghazali, and agreed
to by most jurists including al-Shatibi, are first of two types: dint
or purposes of the Hereafter and dunyawi or purposes pertaining to
this world, The worldly purposes (dunyawi) are further divided into
four types: the preservation of nafs (life), the preservation of nasl
(progeny), the preservation of ‘agl (intellect), and the preservation
‘of mal (wealth). These different types taken together yield five ulti-
mate purposes of the law: din (religion), life, progeny, intellect, and

wealth. All five purposes are called dardirat (necessities) and are the
primary purposes of the law. The darirat are followed by the hdjat
(needs), which are additional purposes needed by the primary pur-
poses. The third category is that of purposes that seek to establish
ease and facility. These are referred to as fahsindt or complementary
purposes."! ‘The precise legal meaning of these purposes has already
been explained in the previous chapter.'? The purpose in thin chap:
ter is to focus on the overall structure of these purposes and their
significance for the social system as a whole.

It would be pertinent to point out here that some jurists, who
were the contemporaries of al-Ghazil! or who followed later, have
not given much importance to the scheme presented by al-Ghazali.
Among the contemporaries of al-Juwayni, and even of al-Ghazali, i
al-Sarakhai, who, in the author's view, is one of the greatest jurists
in Islamic legal history. Al-Sarakhst completely ignored all discus-
sion of the magasid. One jurist who followed a century later, and
who was definitely aware of most of al-Ghazali's works is Tbn Rushd
(Averrées). He presented his own idea of the purposes of the shari'ah
and its ultimate values, at the end of his manual of law, Biddyat al-
Mujtahid,** in the following words:

‘The Qadi (Ibn Rushd), may Allah be pleased with him, said;
It is necessary to know that the ahkim of the shari‘ah dre di-
visible into two kinds. One of these kinds is adjudicated by
the judges, and the majority of the ahkém we have mentioned
fall under this category. The second kind are those not adju-
dicated by the judges, and most of these are in the recom-
mended (mandib) category. This category of the abkém are
like responding to the Muslim greeting (salém), blessing one

MALShatiby, i, 8-13

"See the section om the purposes of law in the previous chapter,
"thm Rushd, i, 349.

RIES OF ISLAMIC Law 239

‘who sneezes, and the like, which are mentioned by the jurists
‘it the end of their books that are called Jewams‘. We have also
thought of mentioning the best known of this category, God
willing.

It is necessary, before this, to know that the legal sunan (prac-
tices) pertaining to conduct have as their purpose the virtues
of the believer. Some of them refer to respect, to whom it is
due, and to the expression of gratitude, to whom that is due.
‘The ‘ibadat are included in this category. These are the sunan
governing ethical values. Some of the sunan relate to the virtue
called ‘iffah (chastity, abstinence from undignified habite), and
are of two kinds: sunen laid down about food and beverages,
and swnan laid down about marital affairs. Some sunan refer to
the requirement of justice and abstention from tyranny, These
are the categories of sunan that require the maintenance of a
balance in financial dealings, and the maintenance of a bal-
‘ance in personal relations (physical contact). Related to this
category are (the shkém of) giedy, wars, and punishments, ns
the maintenance of justice is the aim of all of these. Among
them are senan laid down for individual integrity, and sunen
Inid down for all kinds of wealth and its valuation, through
which is intended the attainment of the merit called generos-
ity, and the avoidance of the meanneas called bukhi (covetous-
ness). Zakih in included in this catagory from one aspect, and
in included in the communal sharing of wealth fro another;
same is the case with charity (ysdagét). There are sunan laid
down for social life, which is the essential condition for human
life, and the preservation of its benefita concerned with conduct
and knowledge, which are called statehood. It is for thie rea-
son that these sunan should be upheld by the lenders and the
upholders of the Din. Among the important sunen forvocial
life are those related to love and hate, and to cooperation for
the maintenance of all these sunan, which is called ai-nahy ‘sn
al-munkar, wa al-amr bi al-ma‘rif (prohibiting the blamewur-
thy and requiring what is good), and which is love and hate,
that is religious, which occurs either due to the evasion of these
sunan ot due to the evil intent of the believer in the shari’ah.
Most of what the jurists mention in the Jewdmi', among their
books, is that which devidtes from the four categories that are
the merit of chastity, the merit of justice, the merit of courage,

240 The Refinement of the Purposes of Law

‘and the merit of generosity, and all kinds of worship ( Sbadah)
ae like conditions for the fulfillment of these merite.

Nevertheless, most of the jurists followed al-Ghazalf in the dis-
cussion of the purposes of law,

13,3, The nature and structure of the magdgid

The structure of the magdgid is understood by appreciating the re-
lationship of the primary purposes among themselves, and their re-
lationship with the secondary and supporting purposes. These re-
lationships are described by al-Sh&tibi through the statement and
explanation of thirteen basic rales. In these rules he gets involved in
detailed discussions, some which are of a theological nature and are
not directly related to this study, As the magdyid are designed to
ultimately serve the interests of the Hereafter, it is this relationship
that may be examined first.

13.3.1. Primary purposes in the service of the Hereafter

‘The first purpose of the shari‘ah is to secure the interest of Man
that pertains to the Hereafter. It is for this reason that the purposes
are divided into dini or purposes of the Hereafter and dunyawt or
purposes restricted to this world. The worldly purposes, in combi-
nation, seek to preserve and protect the interest of Din, Al-Ghazalt
does mention that the second purpose, which is the preservation and
protection of life, may be considered by some to have a higher prior-
ity, because without life there would be no religion. This argument
takes collective life into consideration, and in this sense it would also
hold true for the intellect too, because the existence of “agi is con-
sidered by jurists to be a condition of taklif (legal obligation). He
points out, however, that some provisions of the law clearly support
the superiority of the interest of Din. For example, the interest of
Din is preferred when the subject is asked to give up his life in the
way of Allah, that is, for jihdd.

Al-Shatibi devotes three of the thirteen rules to the discussion of
the Hereafter. The most important point he makes in this context
is that the identification of the interests of Man has not been left to
the whims and fancies of human beings, that is, to human reason,
because all the purposes seek to establish and maintain life in this
world to serve the interests of the Hereafter. He also points out that

Tueortes oF Istawic Law 241

benefits and harms are relative; they may vary from individual to
individual, and from one situation to the other. If harm and benefit
cannot be established directly from the texts, then, it is to be linked
‘to what is usually considered beneficial or harmful. The general rule
that he derives is that since the magdsid serve the interests of the
Hereafter the determination of what is beneficial and what is harmful
cannot be left to human reason. He seeks support from a number of
Qur'inic verses. One of these is:

eres potter

$8 55 Sh ST ial patel STAY,
And if the Truth had followed their desires, verily the heavens
and the earth and whosoever ia therein had been carrupted.!*

In his view, the role of human reason begins after the shari“ah
has laid down the essential principles.!® The first of the thirteen rules
he expounds is devoted to this point.

The primary purpose of the shari'ah, then, as indicated already, is
to free Man from the grip of his own whim and fancy, so that he may
become the servant of Allah by choice, just as he is one without it,’®
‘The preservation and protection of Din is intended by the Lawgiver
to achieve this.

13.3.2. The two faces of the magdgid

Perhaps the most important feature of the magdgid is their dual
thrust, This point has been ignored by almost all the later jurists,
except for al-Shatibi. The reason could be that al-Ghazali did not
mention it in detail in his books on ugtil, though he did give a hint
in Shifa’ al-Ghalil. He mentions this point in his book called Jawdhir
‘al-Que'an.'?

‘The dual feature of the magdyid is evident in the use of the terms
ibga’ and hifz, we may call preservation and protection. Al-
Shatibi considers these the two aspects of hifz. The first he says is
“what affirms its elements and establishes its foundations.""* The
second is “what repels actual or expected disharmony.” The focus

“Qur'an 2971

*ALShagiby, i, 48.

‘bid, 38, 168.

ALGhasall, Jawahir of-Qur’én (Beiret: Dar thy! ab*Ulam, 1985), 22-35
MALShatiby, i, &

"Tbid,

242 ‘The Refinement of the Purposes of Las

of later jurists, and hence that of modern scholars, has been on th
aspect of protection alone. Each purpose, however, has a positive o
aggressive aspect and a negative or defensive aspect. From the pos
itive aspect, the interest is secured by establishing what is require
by the shari'ah through each of its magdyid. Thus, the interest of Di
is secured by the creation of conditions that facilitate worship ani
establish the other essential pillars of Islam.*° The interest of life i
secured by creating conditions for the existence of life.” The interes
of progeny is supported by facilitating and establishing family life.”
‘The interest of intellect is secured by promoting the means for th
growth of the intellect.” The interest of wealth is secured by creatin
proper conditions for the growth of wealth.2*

From the defensive or the protective aspect, interests are secure
by preventing the destruction or corruption of the positive aspect
‘Thus, jihad is prescribed for defending Din, while prayer, fasting
pilgrimage, and zakdh help establish it. It is the duty of the imdr
to ensure proper conditions for both, while it is binding upon eac
subject to fulfill these duties, individually and collectively. Life i
preserved through the provision of sustenance and the maintenanc
of good health, while it is protected or defended through the prov
sion of penalties for those who destroy life without legal justificatior
Nast is promoted through the maintenance of healthy family life an
the institution of marriage, while penalties are provided for thos
who would corrupt it and destroy its values. The preservation of ‘a
is achieved through the provision of education and healthy cond
tions for its growth, while penalties are provided for the consums
tion of substances that destroy the intellect. Preservation of wealth |
achieved by encouraging its growth, while theft or misappropriatio
of wealth is punished through penalties,

13.3.3, Primary and secondary purposes

The jurists break up the magayid into three levels. This has alread
been pointed out. The first level is that of the necessities (darirat
which they believe have been maintained by all societies and wit}

tid. 9
bid.
bid.
* Hid.
*Thid.

‘Tueorigs oF IsLamic Law 243

out which existence of any kind of society is difficult. These are the
primary magdsid and the jurists focus mostly on these. These are
supported by the supporting needs (hajat). The third level is that
of complementary values and norms (tahsindt). There are a number
of details attached to each level. These details were discussed in the
previous chapter.

The important point made by jurists about the significance of
eachslevel is that the primary purposes are supported by the two
other levels. However, if the last two levels are abolished the primary
purposes will stand by themselves. This is not true for the lower
levels. Thus, the existence of dardrét and the tahsinat depends upon
the primary purposes and they cannot be maintained on their own

‘The importance of the individual purposes within the darurdt is
reflected in the order in which they are stated. Thus, Din has prece-
dence over life, life has precedence over nasl, nas! has precedence
over ‘agl, and ‘agl has precedence over mél. This is not all. Each of
the primary purposes may divided into public and private purposes.
‘The public purposes seek to preserve the interests of the community
as whole, while the private purposes protect the rights of individu-
als. Again, the purposes are divisible into those securing the rights
of Alléh and those preserving or protecting the rights of the individ-
uals, There is a fine distinction between the two kinds of divisions,
Vhough many modern scholars tend to consider them identical. The
distinction lies in the fact that there are three kinds of rights to be
identified rather than two. These are right of Allah, the right of the
community as whole, and the right of the individual. Modern schol-
‘ars ignore the distinction between the right of Allah and the rights
of the community as a whole, hence the confusion. This significance
of these distinctions will become obvious later in this chapter,

‘The relationship that exists between the primary purposes may
be highlighted by visualizing outer shells serving or protecting the
inner shell or shells. Thus, the innermost shell is represented by the
preservation and protection of Din. This represents the foremost pur-
pose of the shariah. The shell surrounding it is that of life, which
is itself surrounded by nas! and so on. The outermost shell is that
of the preservation of wealth that serves all the inner shells and is
subservient to them.

Each primary purpose considered to be a necessity has its own
supporting needs and complementary norms. These are also to be
viewed as shells, one inside the other. This relationship is explained

2 The Itelinement of the Purposes of Law

by al-Shatibi through examples, Considering the example of prayer
(salat), he says that the essential parts of the prayer are its arkan
(elements) and fara'id (obligations). Whatever is besides these is
meant to complete and complement it. The parts of prayer are
distributed among the magasid in such a way that each outer shell
forms a protective boundary for the inner shell. One who crosses the
‘outer shell or boundary will soon demolish the inner shell. Thus, the
person who gives up the naff (supererogatory) prayers will soon give
up the sunan, and will finally demolish the fard'id. There are many
instances in the law, he says, that correspond with the analogy of naj!
and fara'id. For example, even a drop of wine or a small quantity
of it is prohibited, because it leads to the consumption of larger
quantities, though it does not intoxicate or damage the intellect, A
severe penalty is provided for stealing a thing of small value as it
leads to the stealing of larger amounts and to robbery.” In the same
way, the ethical and moral norms hover around and protect the main
and essential Jegal norms. ‘The haji and the tahsing are, therefore, to
be considered the servants of the daruri,

13.3.4. Priorities within the magdyid

The relationships described above indicate that some purposes have
sp Neben querhy, ihn othe, elie a meen meee
case of a clash between two interests. This fact also highlights an
important point that while deciding a legal case or while attempting
to understand the position of Islamic law on an issue, one cannot
look at one purpose or interest alone. There is always a clash of
two oF more interests, This is achieved through the machinery af or-
ganized political society that seeks to strike a compromise between
the conflicting wants, desires, and claims of individuals and between
the competing interests. Looking at the purposes of law alone and
identifying the priorities that exist between them would present a
simplistic view of things. The magdsid are always used as a reference
point for the general principles of the law, and this makes the situ-
ation highly complex. This was illustrated in the later parts of the
last chapter while discussing al-Ghazali's theory. Nevertheless, the
magasid considered alone present a fair picture of the entire system
even for the layman, who is not trained in the law. If he observes

* bid. ji, 22
* bid, 22-23.

ve UM QM

‘Tuwonses oF Istamie Law 245

a few rules, he can easily determine the answer to a question that
he may have about the law. For the present purposes, we shall de
scribe three main rules that can be derived from al-Ghazali's work.
Al-Shatibi also acknowledges these, but not as clearly as al-Ghazali
did. Some other minor rules can be stated, but the idea Is to avoid
too much detail and technicalities.

Rule 1; The stronger interest shall prevail

‘The inherent strength of the interests secured by Islamic law is re-
flected in the order in which the magdsid are listed by the juris
Thus, the preservation and protection of Din, as we have pointe
‘out earlier, has preference over the preservation and protection of
life; life has a higher priority than nasl; nasl is prior to ‘agl; and ‘agl
is preferred over mal.

In practice this would mean, for example, that jihad has priority
over preservation of life, and if an individual is asked to participate in
it and give up his life in the cause of Allah, there is legal justification
for it. Preservation of life has a higher priority than the protection of
‘agl. Therefore, if a person is facing death in a desolate place due to
lack of water and the only thing available to him is wine, he is under
‘an obligation to save his life by drinking the Life has priority
over mdi too and it is permitted to take the property of another
person without fear of penalty during a famine, if such taking results
in the saving of life or lives. ra

In the same way, the darurdt have priority over the hdjat, which 7)
in turn have priority over the tahsinat. )

Rule 2: The public interest is prior to the private

The different categories of the purposes can be understood in terms of
public and private interests. Whenever a public interest is in conflict
with a private interest, the public interest will prevail, The example
used by the jurists is that of material handed over to artisans and
craftsmen. The original rule of deposit (wadi'ah) required that this
material being a deposit would not be compensated by the craftsmen
in case it was destroyed, and the burden of proving tort (ta‘addi) or
negligence would be upon the customer, the owner of the property.
‘This rule was Mff@nged to conform with the public interest, because
the eraftsmen wege misusing the facility. The burden of proof was
shifted to the craftsman, who had to show the absence of negligence.
The Hanafis based,this change on istihsdn. The example is expected

aC

246 The Refinement of the Purposes of Las

to show that the public interest requiring security of transaction
and protection of property of the general public was given preferenc
over the interest of individuals, that is, the craftsmen.

In this case, both interests, public as well as private, lie within
the same category, that is, the preservation of wealth. Does the rul
‘that the public interest prevails over the private cut across all th
categories? Can a public interest in a lower category be preferred ove
a private interest in a category with a higher priority? Apparently i
‘can. We shall discuss this point in the next section where the interna

logic of the magdsid will be traced.

Another example used by al-Ghazali upholds justification of tax
ation by the imam when the public interest is at stake. He permit
a ruler in need of money to levy taxes in order to organize jihad.

Rule 3: The definitive interest prevails over the probable

This rule has been the cause of confusion for some jurists follow
ing al-Ghazili, and the confusion is witnessed in the works of some
modern scholars too. Al-Shatibi states very clearly that all the in-
terests preserved and protected by the shari’ah are definitive (gaf'?)
He repeats this point over and over again, and is in fact a funda
mental assumption of his work. The question, therefore, arises thal
if all interests are definitive, where does the probable interest come
from? This issue was discussed at some length in the previous chapter
under the heading of “Improper /stidlal.” The two cases discussed
there were (1) the case of the enemy using some Muslims as shields
and (2) the case of people in « boat who would like to throw some
of their companions into the sea to save the rest. In this sense the
zanni or probable interest does not fall within the magdyid. In othe
words, it is an interest that may appear to the
‘or preserved, but it is actually gharib, that
the shart“oh at all. The examples provided by
thetical and are not likely to exist in actual life, He used them tc
illustrate the distinction between an interest that is acknowledge
by the shari'ah and one that is rejected or is not acknowledged. hii
was explained in the previous discussion of these two cases.

13.4. Tracing the logic of the magasid

In the previous section we have attempted to describe some of the
important features of the purposes of law as they are found in th
books of jurists, especially the works of al-Ghazali and al-’

‘Throniks oF Istastic Law

‘There are, however, certain questions that may arise in the mind of
the reader about which there might he no discussion in the works
of these jurists. Many such questions can be answered by examining
the structure of the magasid presented by these jurists. During the
course of our study, a few questions carne to mind, but we have
not been able to trace a direct answer to these in the books of the
earlier jurists, of in the works of modern scholars, We shall list two:
such questions and then attempt to answer them according to our
own understanding of Islamic law, oth points relate to the intern
logic of the magagid. The purpose ix to show that this is a field that
has not been fully developed by the jurists and there ix room for
interpretation and reinterpretation.

13.4.1. Neal or the family unit?

‘The first point relates to the third purpose of Islamic law that has
boon described by the jurists as the preservation and protection of
nasl. What is the exact meaning of this purpose? The purpose obvi
ously is not to preserve the race of an individual, because distinctions
based upon race are looked down upon by Islam. Some jurists have
even triod to associate it with the protection of reputation (‘ird) or
integrity, in order to accommodate the offense of gadhf. ‘The major
focus, however, appears to be on the paternity of an individual, In
that sense the offense of gadhf is also covered insofar as it denies the
paternity of a person, Does the shari’ah seck to preserve the paternity
‘of @ person? Muslim communities are no longer organized according
to tribal bonds, and the ixsues of paternity may be relevant for the op-
eration of the law of inheritance alone. According to Muslim jurists,
however, it is in relation to this purpose of the law that the Lawgiver
has provided penalties for the married and the unmarried persons,
who are guilty of unlawful sexual intercourse (zind). The offense of
zihar (injurious assimilation) would convey the same meaning. Are
these penalties designed to protect paternity? If it is conceded that
they are, then, why punish homo-sexuality? There are no children
in this case whose paternity may be questioned, acknowledged, or
denied. In addition to this, the protection of paternity should not
make a distinction between the married and the unmarried person.
Why has a lesser penalty been prescribed for the unmarried person?
‘To our mind, the only way these penalties can be accommodated
and the apparent inconsistencies resolved is by focusing on the
stitution of marriage. Islamic law has given great importance to this

248 The Refinement of the Purposes of Lax

institution and has provided numerous rules for its regulation. If th
‘purpose of Islamic law is considered to be the preservation and pro
tection of family life and family values, the contradictions disappear
The institution, cne may say, is considered so important that se
vere penalties have been provided. The unmarried person has beer
ansigned a lesser penalty, because he is considered to have been re
formed and rendered fit for taking up the responsibilities of marrie«
life after the penalty is applied to him. In the case of the marrie«
person the penalty is death. Apparently the law considers that ;
married person who indulges in unlawful sexual intercourse destroy
the foundations of the institution, ruining the lives of the member:
of his family in the process; this would ultimately ruin society it
self, The same arguments may be provided for other sex offenses
According to this interpretation, family life would be considered on
of the essential pillars of Muslim society, The interpretation would
still include questions of paternity, but the focus will have shifted t¢
the family unit as the foundation of the social system,

13.4.2, Public and private interests?

‘The second point pertains to the logic of all the magdyid with ref
erence to the priorities described above, It was stated that Din has
a greater priority than life, life has a higher priority than nas!, and
80 on, It was also stated that when the interest of life clashes with
an interest having a lower priority, the interest of life is to be giver
precedence, For example, drinking of wine is allowed under duress,
in order to save life. Stealing of property is permitted if it naves life
during a famine. On the other hand, we see that theft is punished
with the amputation of the hand. Here theft is an offense that attacks
the interest of wealth, while amputation of a limb is associated with
the interest of life. The interest of the protection of wealth has been
preferred over another interest that has a higher priority; namely, life
and limb. This means that a public interest, which is the protection
of property, has been preferred over a private interest, which is the
right to safety of life and limbs for an individual. Thus, a public in-
terest in a category with a lower priority has been preferred over a
private interest in a category with a higher priority, Again, penalties
are provided for committing unlawful intercourse in order to pro
tect the interest of nas! or the family unit, as explained above, but
the penalties themselves are attacking the interest of life that has
a higher priority. The same can be said for the penalty of whipping

‘Turories or Istamic Law 249

provided for the drinking of wine or consumption of intoxicants. Here
too a public interest in a lower category has been preferred over a
private interest in a higher category.

To student of modern law, where interests are organized as
public and private, this may not present a problem, Modern law can
with ease award a prison term of four hundred years to a persoh who
is guilty of insider trading on the stock market or who has unlawfully
manipulated junk-bonds. The point we are trying to make is that if
public interests can cut across the boundaries of the magayid, it
might be better to organize the structure of the magasid into public
and private interests and then divide each into the five categories
of Din, life, family, ‘agl, and mal. This may bring it closer to how
interests are viewed in modern law.

‘There may, howover, be an added level of complexity here, ax far
as Islamic law is concerned. In Islamic law, the right of Allah may
not be the same thing as the right of the state or of the commu
nity. The jurists have drawn distinctions between them. Islamic law
revolves around a system of rights. There are three hinds of rights
that are distinguished: the right of Allah, the right of the state (hagg
al-salfanah), and the right of the individual. The right of the state.
Which may be equated with the public interest, emerged later wl
the law had attained a level of maturity, and when the distinctions
between the role of the state and that of the jurists appears to have
crystallized. It was mentioned first by al-Mawardi and then by fbn
Rushd. Now, all the penalties falling under the category af hudud are
classified by the jurists as a right of Allah.2” We may, therefore, nay
that in case of clash, the right of Allah as emerging in one interest
will be given preference over the right of the individual or even the
right of state as reflected in a competing interest.

Our conclusion is that the simplistic structure of the magapul
though essentially correct, may not be highly useful to the modern
lawyer in the present form. Muslim jurists will have to work hard on
refining and amending this structure in the light of the texts and the
general propositions of the law.

7” hia im trve in the Hanafi system, The Shafi’, for example, consider godhf
to be a right of the individwal.

250 The Refinement of the Purposes of La

13.5. Magdsid and the Muslim community

‘We have tried so far to trace the evolution of the purposes of Islam
law as they emerge from legal theory, Some of the essential featur
‘of the magasid, as they appear to the jurists, have been record
in isolation from al-Ghagali's legal theory, We are now in a positic
to understand the significance of the magdsid for the entire soci
system. Our study will be facilitated if we attempt to visualize th
kind of community that is reflected in the purposes of Islamic lay
‘This would be the picture of a community that exists to fulfill
achieve the goals that the shari‘ah has determined for it.

13.5.1, The Muslim community as a living organism

To draw a picture of the Muslim community with respect to th
magésid, we would like to seek support from the work of Rappapor
Rappaport maintains that societies viewed as organisms afte genera
purpose systems whose ultimate goal {s survival, “{Gleneral purpo
systems,” be rays, “are players of the existential game, a game th:
is peculiar in that the only reward for playing it is to be allowed |
continue to play.”* If the Muslim community is viewed a# a gener
purpose system in the light of the purposes of shari'ah, it appea
to be a living organism that has both external and internal goal
‘The internal goals are designed to maintain equilibrium within th
organiam, while the external goals determine whether this organism
aggressive and growing or is just playing the existential game referre
to by Professor Rappaport.

External goals

What are the goals of the Muslim community? The moment th
magdgid are viewed as the goals of the Muslim community, the it
‘Verest of Din moves ap and represents its external goal. The positir
aspect of this interest conveys a single goal: to spread the messay
of Islam in the whole world. The instrument utilized for attainiy
this goal is da‘wah in conjunction with jihdd. There are humerot
opinions on the neaning and role of jthdd in the modern age. Thes
however, are not relevant for the present study as we are looking f
the traditional point of view. What is relevant is the opinion of t!

* Rappaport, Ecology, Meaning, and Religion, 146.

Tueoriss oF Istamic Law 251

jurists, and hence the law on this point. Ibn Rushd summarizes the
views of the jurists as follows:

Why wage war? Muslim jurists agreed that the purpose of
fighting with the People of the Book, excluding the (Qurayshite)
People of the Book and the Christian Arabs, is one of two
things: it is either their conversion to Islam or the payment
of jizyah. The payment of jizyah in (stipulated) because of the
words of the Exalted, “Fight against such of those who have
been given the Scripture as believe not in Allah or the Last
Day, and forbid not that which Allah and His Messenger bath
forbidden, and follow not the religion of truth, until they pay
the tribute readily being brought low."?” The majority of the
jurists also argued about the taking of jizyah from the Ma-
gians, because of the saying of the Prophet, “Establish with
e them the practice adopted for the People of the Book.” They
y dinagreed about the polytheists other than the People of the
\

e

Re ea Op ee

Book, whether jizyeh is to be accepted from them. A group

‘ of jurists said that jtuyah is to be charged from all polytheiats,
\ ‘This in Malik’s opinion, Another group exempted from this the
° Arab polytheists. Al-Shafi'l, AbO Thawr, and a group of juriate
" said that jizyah is to be imposed only upon the People of the
. Book and the Magians.
pial ‘The reason for their disagreement is the conflict of general and
. specific implications (in the texts). The general implication is
. in the words of the Exalted, “And fight them until persecution
: is no mote, and religion is all for Allah,”® and in the saying of
the Prophet, “I have been commanded to fight mankind until
they say, ‘There is no God but Allah.’ If they say this their
lives and wealth are protected from me, unless there is another
claimn on them, and their reckoning ia with Allah.” The specific
meaning is in the directive of the Prophet to the commanders
cof troops when he sent them to Arab polytheists who, it is
known, were not the People of the Book, “When you come to
face your enemy, the polytheists, invite them to opt for three
choices,” and he mentioned jizyah as one of them. The tradition
has preceded.°!
e *Qur'in 9: 29

*°Qur'tn § 39
*"bn Rushd, Bidayat ol-Mugtohid, i, 284.

252 The Refinemeat of the Purposes of Law

‘This leaves no doubt that the primary goal of the Muslim commu-

gation. Can the Muslim community suspend this activity in case of

necessity ot without it. Ibn Rushd provides the answer:

Is truce permimsible? A group of jurists permitted this initially
(without warfare) without necessity, if the imam considered it
to be in the interest of the Muslims. Another group of jurits
did not permit it, except on the basis of a compelling neces
sity, euch as the avoidance of disturbances or for gaining for
the Muslim community some concessions from them, which
are not in the nature of jizyeh as the condition for jizyah ix
that they be subject to the laws of the Muslims, ot even with-
‘out taking anything from them. Al-Awaa'l permitted that the
mdm may negotiate a truce with the disbelievers on the basis
‘of something that the Muslims would give to the disbelievers
if that is required as a pecemity for avoiding (greater) trials,
‘or on the basis of any other necessity, Al-Shaf'i said that the
Muslims are not to make any concession to the disbelievers,
unless they fear that they would be overwhelmed by the sheer
number of the enemy, or because of a severe ordeal that they
are subjected to

‘Those who upheld the permission of making a truce when the
imam sow an interest (of the Muslims) in this are MAlik, al-
Shafi'T, and AbG Hanifah, except that al-Shii' stipulated that
the duration of the truce should not be for a period greater
than the one transacted by the Memsenger of Allah with the
disbelievers in the year of al-Hudaybiya

‘The reason for their disagreement over the permisibility of
‘truce without a necessity is the conflict of the apparent mean:
ing of the words of the Exalted, “Then, when the sacred months
hhave passed, slay the idolaters wherever ye find them," and
His words, “Fight those who do not believe in Allah nor the
Last Day,* ® with His words, “And if they incline to peace,

“Qur'sn 9 <5

“Qur'ss 9: 23, Pickthall's translation has been changed here. His translation
of this verse reads, “Fight against soch of thove who have bees given the Scripture
4% believe not in AllSK nor the Last Day.” This translation is correct, but only

when the complete verse is taken into account.

‘Tweortes oF Istamic Law 253

incline thou also to it, and trust in Allah," ** Those who main-
tained that the verse commanding fighting unless they believe
‘or pay the jizyah has abrogated the verse implying peace said
that truce is not permitted, except in the case of necemity.
‘Those who maintained that the verse implying peace has re-
stricted the other said that truce is permitted if the imam
considers it proper. They supported this interpretation with
the act of the Prophet in this case, because his truce in the
year of al-Hudaybiya was not based upon necessity.°*

This shows that the aggressive propagation of Islam and the ac-
tivity of jihéd can be suspended with or without necessity in the
opinion of some jurists, but it is only a transitory phase, for which
some jurists fix a specified period, while others do not.

Professor W. Montgomery Watt maintains that the expansion of
Mubammad’s city-state into an empire raised the expectation that
the Islamic empire would ultimately include the whole human race. |
We would agree with Professor Watt on this point with a alight qual-
ification. The idea that Islam (not the Islamic empire) would ulti-
mately include the whole human race is not based on early conquests
alone, but is an acknowledged goal of the Muslim community, and it
arises from the texts of the Qur'an as well as the Sunnah, as quoted
by Ibn Rushd above. According to such reasoning, the Muslim com:
munity may be considered to be passing through a period of trace, In
its present state of weakness, there is nothing much it can do about
it.

‘Will this community annul this truce, if tomorrow it were to gain
in strength? Perhaps, this is what Watt has in mind when he says
that that intentions of ultimate world domination are not so much a
cause of worry for the non-Muslim states as are the treaties signed
by the Muslim states, for “the division of the world into the sphere
of Islam and the sphere of war is by no means a thing of the past, In
so far as traditional Islam grows in strength it could come into the
forefront of world politics.”>" Debating this point would be futile,
and much depends on how far the world has progressed in terms of

“Qur'an 8: 61

Stbid. 283-284

%*W. Montgomery Watt, Islamic Fundamentaliom and Modernity (London,
1988), 2-4.

eng

254 The Refinement of the Purposes of Law

justice, fair-play, mutual cooperation, and freedom from exploitation,
by the time the Muslim community gains in strength. It is to be
hoped that in this modern world, where religion has been given a
back seat in the general scheme of things and where other problems
that affect the planet as a whole loom large, the Muslim community
will continue to maintain the truce and agreements in a spirit of
cooperation and focus more on the institution of da‘wah (invitation)
than on the instrament of jihdd (holy war), especially when there
‘are legal opinions supporting truce.

Internal Goals

Besides the external goal, the Muslim community has internal goals
that may be said to represent subsystems. These are represented by
the subsystem for the preservation and protection of life, the sub-
system for the maintenance of the family unit and family values, the
subsystem for the development of personality and intellect, and the
system for economic well being. How would these subsystems as-
sist the Muslim community, or require it, to maintain internal equilib-
rium? It is obvious that these subsystems would be Geveloped within
the framework of the political system, the legal system, and the eco-
nomic system developed by the Muslim community. These subsys-
tems, that is, the legal, political, and economic, have been discussed
fat great length by many scholars. Our limited purpose in the present
study is to see how magasid al-shari‘ah govern these subsystems and
regulate their operation.

13.5.2. The magdgid and the political system

‘To understand the operation of the magdsid in the Islamic political
system, it is essential to summarize some of the ideas current in
Islamic political thought, As a student of this field, I have always
found that most of the ideas expressed by jurists and early thinkers
appear to converge in the life and thought of Ibn ‘Taymiyah. It would
be instructive to narrate some of the efforts made by this great jurist
and mujahid.

Tbn Taymiyah and Islamic political thought

A large body of literature has been produced on Tagi al-Din Ahmad
Ton Taymiyah in the modern age, but full justice has not been done to

‘Tneories oF Istamic Law 255

his political thought. Born to a Kurd™ family, six years before the ex-
tinction of the Baghdad caliphate, Ibn Taymiyah lived his life trying
to fill the roles of a jurist, a reformer, and a valiant soldier of Islam.
fying his mission in the evolution of Muslim politi-
cal thought, he tried to forge a union, with necessary amendments,
between the views of the jurists, the literary works of the adminis-
trators, and the ideas of the faldsifah (philosophers). This important
aspect of his political thought has never been fully appreciated.”
‘The political thought that had crystallized and matured up to
‘the time of Ibn Taymiyah is generally considered as three separate
genres, or as three separate formulations of the theory of state: the
Jjuristic theory, the theory of philosophers, and the literary theory.”
All these theories “set forth the divine nature of ultimate sovereignty
and presuppose the existence of state within which the earthly life of
the community runs its course and whose function is to guarantee
the maintenance of Islam, the application of shari‘a, and the defence
of orthodoxy against heresy."*" All three formulations tend to con-_

“Aba Zahrah thinks that the clas of “Taymiyah* was, most probably, of Kur
dish origin. AbQ Zahra, Sm Taymyah (Cairo, 1962) 18, See also Qamaruddin
Khan, Political Thought, 1

"The most important work on [bo Taymyah in considered to be that of Henri
Laount, Exsai Sur Les Doctrines Sociales et Politiques de Taki-d-Din b. Tormiya
(Le Caire: Institut Francais D'Archeologie Orientale, 1999). The work of Qa:
maruddin Khan, The Political Thought of Son Toymiyah (Istamabad, 1973) and
“bn Taymiyah's Views on the Prophetic State,” Islamic Studies, IRI, ii (ee)

syntematically study the

doctrines;

sacyclopundic: work about Toa Tayastyah, excl canis ofall Oat he bas
‘written. The part that treats of his strictly political ideas does not comprise more
‘than forty pages.” Qamaruddin Khan, Politicel Thought, i. Books and articles
con Islamic political thooght, which devote amall sections to Ibn Taymiyah are
E.LJ. Rosenthal, Political Thought in Medieval Islam: An Introductory Outline
(Cambridge, 1958) 51-61; “The Role of State in Islam: Theory and the Medieval
Practice,” Der Islam (1973) 1-28; and Ann K.S. Lambton, State and Govern-
ment in Medieval Islam (Oxford, 1981) 143-51, See also Victor E. Makari, Jon
Taymeyyah's Ethics: The Social Factor (California, 1943) 133-73.

Ann Lambton describing these says “Broadly speaking three main formula-
tions can be distinguished; the theory of the jurists, the theory of the philosophere
and the literary theory, im which | would include primarily mirrors for princes,
but also the expositions of the administrators, since these are put forward mainly
in literary works, and the scattered observations of historians on the theory of
state.” Lambton, State and Government, xvi.

“Ibid. xvi (emphasis added),

256. The Refinement of the Purposes of Law

centrate on the position of the ruler,“? but the juristic theory, which
was developed gradually by the Ash‘arite school, was occupied with
the historical continuity of the ummah; it considered the shari'ah as
supreme and upheld the khildfah as the symbol of this supremacy.*®
According to Gibb, the theory collapsed trying to legitimize the
usurpation of power by the sultans and the amirs.** Al-Mawardi
and al-Ghazali both tried to justify the necessity of the universal
caliphate and at the same time made concessions to the warlords,
‘This was the beginning of the collapse of the theory, Al-Ghazali had
recognized that in his time government was a consequence solely of
military power and whosoever had the allegiance of the holder of
military power became the caliph.® While al-Ghazali included the
sultanate as a necessary element in the universal caliphate, by the
time of Ibn Taymiyah, his contemporary Ibn Jama'ah went further
and accepted the possibility of the absorption or iareanabee: t-
self into the sultanate, {The element of coercive power had, as it
were, swallowed up the primary element in al-GhazAli's caliphate,
the imam.”

Ibn rear was writing after the extinction of the caliphal
when the earlier juristic theory had lost all meaning, but he made
his proposal in complete disregard of some of the legal issues involved.
For Ibn Taymiyah the absorption of the caliphate was not a simple
problem; it faced a legal obstacle, A rule had existed in law that all

‘ts of the community derived their legal validity through the delega-

S¥ ice of authority bythe imém and nacded bla overall superviion and
%/ 7 appro. This authority had been derived from the Prophet, whose
vor (khalifah) the imam was. This rule is best expressed in the

ok ‘ds of al-Ghazali, who points out that the absence of the imdm (or
+ | Abalifah) would nullify all acts of the community and involve them

‘Ibid. avi. Cf. Rosenthal, Role of State, 23; “There ix a frst group of writings
known as "Mirrors for Princes” which aim at the ruler, not at the state, and tend
to give good advice” He appears to imply that the other theories concentrate on
the state, or Mhilajah
|") _“Hlarilton ALR. Gibb, Studies on the Civilisation of Islam, Shaw and Polk,

‘ede. (London, 1962) 141-42.
\/ “Ibid. 141, 164, "By this he appears to mean that the theory failed to make
{fany credible assertion about « particular person having 4 right to rule™ W. Mont-
. gomery Watt, Islamic Political Thought (Edinburgh, 1981) 102

“Gibb, 142-43 quoting alGhasali thys" ‘Ulam al-Din, ii, 124. See also al-
Ghazali al-Iqtigad fr al-I°tagad (Ankara, 1962) 234-41

“Lambton, 139, 141

rie

Turonies oF Istamic Law 257

in sin, Dseansng the cooseqeencyd of the absence of the imam, he
says: “The judges are suspended, /the wildydt (authorities) are nulli-
fied, marriages are void, the decrees of those in authority cannot be
executed, and all human beings are on the verge of hardm."*” This
idea also underlies the obligatory nature of the imdmah and gives
meaning to the historical continuity of the khildfah. It explains why
the jurists, before Ibn Taymiyah, clung to the concept of khilafah,
oven thong in practice It had coneed to have.any significance. This

was demolished by the Mongols, when they put the Baghdad
caliphate to the sword.

Once this rule had been crushed in practice, Ibn Taymiyah set
himself the task of demolishing its theoretical remnants, To do so, he
did not “presuppose the existence of a state” from the earliest times.
He went back to the period of the Prophet and denied that the state
‘as implied by the concept of khildfah had ever been established by
the Prophet. He declared that the period of the Prophet could not be
described as anything but nubdwwah. The Prophet's authority arose
from his function as » Prophet and not as the head of a state, While
it is true that Ibn Taymiyah is primarily answering his opponents
among the Rawéfid and the Shi'ites, the idea of the non-existence
of a state in those early stages is essential to his political thought.**
Once this point is established, Ibn Taymiyah proceeds to separate the
period of the first four caliphs from that of the Umayyads, calling
the former as khildfat al-nubdwwah and the latter as mulk.4? He sees
the bhildfat al-nubdwwah not as a state, but as an overflowing of
the task begun by the Prophet. This task could only be handled by

far to seek. He wrote the Minhaj, which is the main source of this idea, only to
counter Shriiam...,” Failing to find « plausible reason he attributes this to the
polemics with the Shiites, This reason is partially valid, but to view it purely ax
polemical device is beyond comprehension. On the basis of this reasoaing, the
\ajor portion of Iba Taymtyah’s political thought can be set aside as being based
‘on such disputations, merely because it is contained in the four volumes of the
‘Minhaj. In fact, Qamaraddin Khan wishes to assert the existence of an Islamic
state in the period of the Prophet and arguing with Ibn Taymiyah on thie point
is wot very difficult. See Qamaraddin Khan, Political Thought, 52-97, 92.

"See Ibid. 65-97 for « detailed discussion

258 The Refinement of the Purposes of Law

those who were inspired by a very close contact with the Prophet,°?
The khilafat al-nubswwah being inspired could not be passed on in
succession or even imitated. The only thing that could be passed on
was the principle of the supremacy of the shari'ah. This principle
_yoiebuld work efficiently whoever the ruler or rulers, one or more.*!
‘This is the crux of the matter. By detaching this principle from its
symbol, the khildfah, Iba Taymiyah provided the legal foundation
for @ multiplicity of states. He also deni it of it
Allah, which tended to i h
vleyate them above the shars‘eh; it mad
of the sharr‘ah. Thus, with the idea of the supren
and is legal implications, the view that the validity of ll. transactions
depended on the universal caliphate appeared to be a fiction.
After detaching the principle of the supremacy of shari‘ah from
the concept of khiléfah, Nou Taymiyah started building up his theory

2) | phot imdmah, by amending the
“fh
*

porating elements from the ‘theory and es Cares
philosophers. In doing so, Ibn T:

and the administration
shar'iyah, a powerful exposition of his
therefore, be considered a uniform whole designed to subject
pects of human life to the dictates of the sharvah,
Ne first outlined the concept of wmmah, For him the ummah was
composed of the aAl al-sunnah wa al-jamd’ah, who are the ummah
wasat, the upholders of the principle of tawhid and “who are the
repository and custodians of the thought and practice of the Prophet,
and hor Companions, and who represent the original Islam. 4 The
_ re aaver wer, “devolved with the death of the Prophet

upon all those who by their learning and virtue were the authorized
interpreters of the law and, therefore, charged with adapting it to
new conditions of time and place."** He conceived of not one, but

"ibid m2-89

“bid 99

“lle called the concept vot omly linguistically wrong, but inherently absurd,
Ibid. TH

“The introduction in india of the dint slahé by the Mughul emperor Akbar is
4 cave in point

“Ibid. 115

“Lambton, 145. Cf Quroaruddin Khan, Political Thought, 137: “The sense of

Treonses or Istamic Law 259

a multiplicity of states, and talked in his al-Siyésah al-Shar‘iyah
in terms of rulers rather than one ruler.57 With the removal of the
limitations imposed by the universal caliphate, such a notion did not
pose any problems for him. He rejected the concept of the atl al-
hall wa al-‘agd as a kind of clergy and did not admit the doctrine of
election, considering it a fiction.®* Al-Mawardi's idea of one, two, or
three electors is, consequently, rejected.5”

He retained the principle of shawkah (coercive power) as it had
been developed by al-Ghazali, along with the concept of mubaya‘ah.
Al-Ghazall had explained that the purpose of shawkah was to gange— i“
public opinion as a large number of divergent opinions wore gathered.“
in one person possesting ‘ue Of is following. He says

in his al-Iqtigad: “The pur that a
opinions be gathered in one person Saas and the
imam comes to command obedience ...through the mubaya‘ah of
this person." Ibn Taymiyah turned down the idea of the imam
being from the tribe of Quraysh, considering It as valid only for the
period immediately following the death of the Prophet." As for the
relationship that exists between the ruler and the subjects, it is not
only that of principal and agent (waki!), but the imdmn is also the wali
(guardian) and sharik (partner) of his subjects: Tha Taymiyah's
views about deposing the unjust imam, however, were no “ferent ) )
from those of his predecessors.

this passage is not as Laoust and Rosenthal have averred, that the ‘ulama’in an
Lalamic state enjoy individual magistracy oF collective sovereignty.”

“Qmaruddin Khan, Political Thought, 122-23,
‘Taymlyah al-Siydsah al Shariyoh (Beirut: Dav al-Kutub ab*Arabiyah,
nd.) 23, Qamaruddio Khan, Political Thought, 123; Lambton, 147-48

“Lambton, 148; Qamaruddin Khan, Political Thought, 133-35.

"Qamaruddin Khan, Polsneal Thought, 133.

"See Ibn Taymiyah Minha) al-Sunnah ai-Nobowiyah fi Nowy Kalam al-She'ah
wa al-Qadartyah, 4 vole. (Cairo, 1321 A.B.) iv, 237,

*'ALGhasall, al-Jgtigad, 238,

Qamaruddin Khan, Political Thought, 144-45,

Lambton, 149.

“‘Romenthal, Role of State, 21,

260 The Refinement of the Purposes of Law

The relationship of Ibn Taymilyah’s views with those of the
falasifah, particularly al-Farabi, is explained in some detail by
Rosenthal. The idea of ummah wasat is traced to Aristotle's
‘mesotes. The politico-juridical function of the Prophet is consid-
ered similar to that of the philosopher-king in the exposition of al-
Parabi. Ibn Taymiyah’s two classes in authority, the ‘wlama’ and
‘amirs, are taken to correspond partly to Plato’s philosopher-kings
and plebians. Some other parallels are also drawn by Rosenthal, who
adds that “this must not blind us to the fundamental differences
which are naturally more in evidence in Ibn Taymiya than in al-
ParAbi and in Ibn Rushd."*” One thing is certain, though, that Ibn
‘Taymiyah was conscious of the power of such ideas over a large num:
ber of Muslim jurists and thinkers,* and he could not ignore these
ideas completely, He, therefore, employed as many as he possibly and
safely could.

According to Lambton, the underlying idea of the literary theory
was “justice,” but this could as easily be traced to Plato and Aris:
totle as the principal “political” virtue.” Nevertheless, [bo Taymiyah
discusses his idea of siydsah ‘ddilah and considers the establishment
of justice as one of the fundamental aims of wildyah and envisages
aménah and justice as the two essential qualities of the government
by the shari‘ah,”! On the whole, Ibn Taymiyah realized the impor:
tance of “siydsah” literature as a separate field. This realization is
found in al-GhazAll before him.

While al-Ghazali had kept his writings separate, Ibn Taymlyah
merged the “siydsah” and the sharf‘ah elements to compose his al-

Siydsah al-Shar‘iyah, apparently in the attempt to reduce the gap
“Rosenthal, Political Thought, 51-61.
“Lambton, 144.

“"Roventhal, Political Thought, 58.

“Rosenthal speaking about tbe influesce of Greck-Hellenistic thought in Islam
says: “Tam inclined (o yee in it as analogy, a mode of expression adopted by
the jurists in an attempt to counter the philosophers and their challenge. The
Possibility, however, cannot be excluded that the political thought of the Faldsifa,
which owes so much to Plato and Aristotle, sharpened the eyes of the jurists
writing x constitutional problems and led them to appreciate the theoretical
basis underlying the streggie for power in their day Ibid

“Lambton, xvi.

"Rosenthal, Political Thought, 55.

"'Qamaruddin Khan, Political Thought, 153,

‘Tueonies oF Istamic Law 261

between theory and practice. This treatise has much in common with
the siydsatndmahs of the administrators and other kindred literature.

Tbn Taymiyah had a burning desire to restore the purity of Islam
and to establish a new bond between the ummah and the shari‘ah,
beyond the existence of a “more than shadowy caliphate.”7? His writ-
ings and teachings not only exerted a lasting influence in his own
times, but also on Muslims in the modern times, who wanted to es-
tablish an Islamic state on the basis of the shari‘ah. Some of the re-
forms advocated by him were actually implemented by the Mamlik
sultan”? His influence on Wahhabism in particular and on a host
of modern Muslim scholars is well known, In these terms, he may
be said to be one of the most influential writers in Islamic history,
“But since his reforms tended to lead back to a golden but primitive
past through his narrow interpretation on what constitutes Sunn
and what bid’ah (innovation), his plea for a siydsa shar‘iya went
unheeded, and his appeal to the umma wasat met with little oF no
tesponse.”"* In addition, he had not only underestimated the strug-
sles for power, but also the bias and deep prejudices of the ulama’
of different schools, to whom he had accorded a prominent place in
his system. Above all, he had failed to lay down in clear terms a
methodology,” acceptable to the various schools and in conformity
with their own systems, for the reinterpretation and application of
the shart'ah.

Magigid and the supremacy of the sharfah
‘The main idea that emerges from the efforts of Ibm Tayrmuyah, as div
cussed by various scholars, is that of the supremacy of the shart'ah in
a multiplicity of Muslim states. Once the supremacy of the shari'ah
is conceded a# a basic principle, it becomes a simple matter to as:

sess what such supremacy entails, To our mind, the supremacy of
the shari‘ah means the total implementation of the purpases of the

Rosenthal, Political Thought, 60,

"*Rorenthal, Role of State, 20.

*flosenthal, Political Thought, 60,

"*Tbn Taymiyah did not attach much importance to the difference of the juriats,
but he did lay down some methods to bring uniformity into the law in his Qa'sdah
‘fi Tawahhud af-Milloh We also did not attempt to recreate a wniform code, instead
he gave opinions on a large of iseues. These were gathered in his al:
jn Khas, Political Thought, 117, Apparently,

262 The Refinement of the Purposes of L

shari‘ah by each Muslim community, This would imply in turn tt
the form of government adopted by each community, though imp
‘tant in itself, does not affect this fundamental rule, Each commun
must maintain the supremacy of the shari‘ah, This supremacy will

self ensure that justice is maintained and the rights of each individu
or group are secured through the due process of the law.

‘Thus, each community must establish din in accordance with t
first purpose of the law. It must ensure the safety and welfare of
human beings under its governance. This is done by providing |
means of sustenance and shelter in accordance with the second pu
pose of the shari‘ah. The state must establish conditions for a sour
family system in accordance with the dictates of the shari'ah a
the requirements of the third objective. This obligation is follow
by the duty to provide conditions for the growth of healthy min¢
The only way this can be done is by providing freedom of expressi
and a sound and universal education. This is the only way that t
fourth objective will be attained. Finally, the state must also ensu
the economic well being of the community as a whole. All these d
ties must be accomplished in the listed order of priority, as requir
by the structure of the magagid.

The duties of the rulers or the government aside, the major que
tion that is faced in such a discussion is whether democracy ix uphe
by Islamic law as a means of good governance. In the author's vie\
it is the preferred form that is advocated by Muslim jurists. Th
imdin is always considered to be the agent (wakit) of each citize
The contract of bay'ah is only a form of voting. The principle
shawkah was only 4 means of assessing the number of supporters
leader would have, This is clearly indicated by al-Ghazali above. I
says: “The purpose is that a large number of divergent opinions t
gathered in one person commanding obedience, and the imam com
to command obedience ... through the mubdya'‘ah of this person,”
‘Today, it is up to the Muslims to implement the best system th
can measure “a large oumber of divergent opinions.” For the presen
democracy seems to be the only system that best conforms with thi
A democratic government must guarantee the implementation of t
purposes of the shari'ah, and consider this to be its primary dut
‘The basic rights of the citizens must flow from the magasid,

"*ALGhaaall, absIytnydd, 236

Tuzontes oF Istamic Law 263

13.5.3. The magagid and the economic system

The economic system within a state is usually a reflection of the
priorities determined by a nation for itself. In an Islamic state, the
priorities of the economic system are determined by the magdsid,
The preservation of wealth, as we have seen above, is a purpose
with the lowest relative priority, This does not imply that it has
the least importance. The economic sub-system within the larger
aystem represented by the Muslim community is required to serve
the interests determined by the first four purposes of the shari‘ah.
‘Thus, the economy must be geared to meet the requirements of din
as well as jihdd. The second priority goes to life and the means of
livelihood, The economic system must ensure that there is no one
homeless or hungry within the community. After handling this, the
next priority for this subsystem is to provide the basic means for
pursuing a healthy family life. This will be followed by education
and the development of the intellect. Once these needs have been
met, the economy will pursue the goal of increasing wealth itself.
This goal will be subject to the constraints placed by the shari'ah as
regards ribd and speculation in essential commodities. If the Muslims
think today that a free market would attain this sub-goal, then, there
‘appears to be no harm in it, as long as the first four goals have been
met.

‘The real problem for the economic subsystem, and for Islamic
economics as a discipline, is to identify in the light of the magayid
what kind of distributive justice is-advocated by Islam. The measures
advocated by modern scholars are somewhat vague. An indication of
the kind of distributive justice prevailing in a community is the way
it allocates and distributes social goods among its members, This in
turn depends on the history and cultural heritage of the community
from where the common and shared ideals of this community are
derived, The Muslim community has its own ideals and is, therefore,
distinct from other communities. These ideals are represented by the
magdsid al-shar’ah, which provide uniform norms to be pursued by
the political, legal, and economic subsystems. An attempt to implant
the ideals of another culture on to this community is likely to be haz-
ardous and may even thwart its progress, because of the confusion
this might cause. This is what is being witnessed all over the Muslim
world today, as Muslim communities vacillate between Western prin-
ciples of ition and the shared ideals that have been handed
to them by history. Before Muslim communities can revert to the

264 The Refinement of the Purposes of La

shared ideals of their members, these ideals need to be translate
‘once again, into principles that would work in the modern age, Mu
lim economists appear to be occupied with this task, as most of the
discussions pertain to issues of distributive justice.

‘The discipline of Islamic economics is still in its infancy, and need
nourishment from the law. This is the main reason why many of th
works of these scholars deal with questions of law that have a bearin
‘on economics or with questions of distributive justice. The idea ay
pears to be that once Muslim communities adopt their own principle
of distributive justice and shape their economic policies according]
the nature of their economies will change, and the discipline of I
lamic economics will come into its own. Because economics is, on th
whole, a positive science and studies conditions as they exist, it |
only after the operation of economic policies based on the true prir
ciples of Islamic distributive justice that Islamic economics will com
to be a recognized discipline. Even when economics ix occupied wit
some higher values, it is with values that are being implemented c
are operative in a given society. The Islamic principles of distributiv
justice are not operative in the true sense in any state, and the ecc
nomic policies of these states are not determined by those principles

‘There is, therefore, very little that Islamic economies has to go ot
In our view, the first thing that Muslim economists need to do is t
determine the general economic policies that Muslim states need t
follow on the basis of the principles of distributive justice expounde
by Islam. Proposing such policies Is not enough. It must be show
that these principles truly emerge from the traditional literature an
traditional values. The attempt by some modern scholars to lin
the principles of distributive justice to the concept of tawhid, whil
interesting is not very useful, as such concepts are difficult to.redue
toa traditional legal content, A large part of the concept would hav
to be justified on *'. oasis of personal opinion, and this’ may no

7 be acceptable to cviners, The first place to look for the principles «

distributive justice should, therefore, be traditional legal theory, Thi
will ensure that these principles and values are really shared by all.
is the only way that the principles will be acceptable to the Muslir
masses.

The principles of distributive justice found in the tradition
texts, as represented by the magasid, are not fixed and rigid. The
have been left vague and flexible by the Lawgiver, so that Muslit
communities in different'ages might reinterpret themto suit the
Greumstances. If Mustinr states agree Yo implement the policies pr

Tueories oF IsLamic Law 265

posed by the economists, a beginning will have been made. Till such
time that this is done, the discipline of Islamic economics will remain
in the realm of the “should-be.”

What is important to realize, however, is that Islamic economics
as a discipline is not the goal here. This discipline is merely a tool to
understand and analyze the impact of the economic policies actually
pursued by Muslim states. Once this impact is analyzed, it can be
used to propose amendments to the policies, again in the light of Is-
lamic principles of distributive justice. The primary focus of Muslim
economists, till such time that Islamic economic policies are imple-
mented in a comprehensive way by Muslim states, should be on the
shared ideals of distributive justice in a Muslim community or state,
‘and on the allocation and distribution of social goods in pursuance
of these principles. Hand in hand with the principles of distributive
justice go the laws of Islam that have a bearing on economic policies,
‘though what we mean by social goods applies to whatever is covered
by law. Muslim economists have done considerable work in the last
two decades, but a comprehensive theory that knits all these prin-
ciples within comprehensive proposed policies is still lacking. One
reason for the lack of a general theory could be that the true nature
of the Islamic legal system has not been understood, nor has the rela-
tionship between the operation of the legal system and the operation
of the system of distributive justice been fully appreciated.

‘The principles of Islamic distributive justice, it is maintained, are
to be found in the Qur'an and the Sunnah (decisions and practice
of the Prophet). The Muslim economist who wishes to derive these
principles has three choices: to derive them again directly from the
Qur'in and the Sunnah; to rely solely on the works of the early
jurists; or to use both methods. Some economists are following the
first method, while others are following the third, which in our view
is preferable, as it builds on the work of the preceding generations.
The author is no economist, His occupation for the last one and a
half decade has been with Islamic law and the work of the jurists,
He must, if he takes up the task, follow the second course, and en-
deavor to highlight the views of our predecessors. It is, therefore,
stated that the principles of Islamic distributive justice are visible
within the purposes of the shari‘ah, and it is from these norms that
a detailed system of distributive justice must be constructed. This is
a prerequisite to all progress in the discipline of Islamic economics.

266 The Refinement of the Purposes of La

13.5.4. The magdgid and the legal system

//What has been said about the principles of distributive justice hold
| / true for the principles of Islamic legal justice as well. There is a lack
4/7, theacetical conviction on what strategy, or combination of strategie
“\|js best for the Islamization of laws. Some scholars accustomed t
European civil law have been proposing the complete codification «
laws, while others used to English common law have proposed th
| declaration of the supremacy of Islamic law based on the Qur'd
|land the Sunnah to be enough, leaving the rest to judges trained i
the common law. The Islamic Republic of Pakistan, for example, ha
» boldly adopted the latter course, It is a bold step, but the questioi
is whether the Islamic system will grow naturally into or out of th
English common law obtaining in that country. Is there a consensu
‘among judges trained only in the common law and the ulama’ judge
trained only in the traditional law as to what shape Islamic law is t
take in the modern age? What is the structure of this law? Which o
the various methodologies of interpretation is to be employed? Wha
kind of rights are secured by this law and in what order of priority’
Is it enough to say that the judge will look for a ruling first in th
Qur'n, then in the Sunnah, and then follow his own reasoning?

In addition to this, there are scholars who have held that th
principle of maglahah is the key to the development of Islamic lav
in modern times. This may be true, but is it clear what this princi
ple stands for or how it is to operate within a modern legal system’

. Again, there is the ludicrous attempt by some to-associate this prin
~ ciple with Bentham's principle of utility, Purther, there is a certair
vagueness that surrounds the meaning of the phrase “principles o
Islamic law as found in the Qur’n and the Sunnah.” The truth i
that while one often hears this phrase, it is not clear what is mean
by the term principles here, or even what a principle means in Islami

law in legal terms.

‘The purpose here is not to be critical, but to point out that ther
is lack of a concerted effort on the part of the scholars of Islamic law
as well as Muslim judges and lawyers, to arrive at a comprehensiv
shared strategy for the Islamization of laws. Indeed, great stride
have been made by the people of Pakistan in the area of Islamic lav
as well as Islamic banking, when many other countries are merel}
paying lip service. The efforts made in other countries in the area o
Islamic banking are to be appreciated too, especially because thes
are based on private efforts. The aim of this work is to point ou

‘Tasoriss oF Istamic Law 267

the need for injecting some system into the whole enterprise. This
is possible through the proposal of a comprehensive strategy that

: is wubjected to penetrating analysis by Muslim scholars all over the
A world.

: Our conviction is that the real reason for a lack of a comprehen-
. sive strategy is that the work of our predecessors is being neglected.

f It Js difficult, if not impossible, to go directly to the Qur’an and the
Sunnah and come up, in a short time, with a legal aystem that will be
able to solve the problems of the modern age. It will require decades,
if not centuries to do so. On the other hand, early Muslim jurists
took at least five centuries to plan the details of this legal system.
They have left a blueprint that can be used to erect the structure of
modern legal system. The preliminary step for each person occu-
pied with their work appears to be to understand the outlines of the
proposed system and then record his own impressions of it. If the
conclusions are incorrect, or misfounded, others will correct them,

Ih is in this spirit that this book has been written. All that is
contained in this book may in a way be subsumed under the heading:
‘The magdgid and the Islamic legal system.

13.6, Priorities: Islamic and Western

We now have a clear picture of the priorities postulated by the
magdgid al-shari’ah or the purposes of Islamic law. If we try to com-
pare these with the priorities, actual or estimated, in Western coun-
tries it would help in understanding some of the differences between
the two communities better. This may be done briefly here, because
a detailed analysis would require an exhaustive study.

We have seen above that the highest priority is assigned to thd,
interest of Din by the jurists of Islam. Religion in the West, on the
other hand, has been redaced to level with slowest ploy In fact, /
it is not even a public interest; it is a personal affair. Some Western
scholars have hinted that the Muslim community should follow suit
and reduce religion to a private affair. The privatization of Islam will
alter the structure of the magdsid as seen by the fugaha’.

When we examine the priorities in certain Western countries as
‘a whole, especially in countries like the United States of America,
we get the impression that the priorities may be entirely reversed
‘as compared to those for the mogdsid. Consider, for example, the
statement: What is good for General Motors is good for the United

}
;

i
;

268 The Refinement of the Purposes of Law

States. This would imply that the preservation and protection 0
wealth has the highest priority in the United States. Consider th

/ preservation and protection of ‘agl, This is a lower category in the

Islamic system, but it could be a higher category in the United State
when viewed in terms of freedom of expression.

‘As such a comparison needs to be based on accurate and reliabl
Information requiring exhaustive research, we will not pursue the
matter any further, The general idea was no more than to indicate
that the priorities for the West might be visible in the reverse order

Part III

Ijtihad Today

We have now reached the stage where we can derive some benefit
from our study of the concept of Islamic law and of legal theories.
During the course of this study, a number of claims have been made
and arguments from Islamic legal history have been advanced to sup-
port them, The conclusions drawn separately will have little benefit
unless they are knit into a meaningful theory, a theory that can help
us understand the Islamic legal system and point to the direction that
a legal system based upon the principles of Islamic law is expected
to take.

‘This third part is, therefore, devoted to an analysis of what was
described in the first two parts. The analysis will be recorded in the
form of lessons that we derive for our future behaviour and the ways
in which we can promote the activity of ijtihdd in the present age.
Accordingly, the first chapter in this part will focus on the lessons to
be derived from Islamic legal history, while the second chapter will
outline the current and possibly the future mode of ijtihad.

Chapter 14

Lessons From Legal
History

14.1. A theory of Islamic law

‘The attempt to formulate a theory of Islamic law will be easier and
appear more meaningful if one or more existing theories are first
stated. Muslim scholars, as has been stated earlier, have not formu-
lated a comprehensive theory about Islamic law or about the Islamic
logal system, There is no explicit statement about the alleged sep-
aration between theory and practice, except what we mentioned in
the earlier chapters. There is a vague agreement that upil al-figh,
despite the varying views of the schools, is to be treated as a uni-
form and single discipline, yielding a single method of interpretation.
Questions of analytical consistency of the principles of interpretation
are not answered, The only theory that can be identified is the one
gleaned from the writings of the Orientalists. The first two parts of
this study may be said to have been undertaken, in part, to counter
this theory about Islamic law constructed by the Orientalists, What
is this theory and what are its features that we find to be inconsis-
tent with the nature and structure of Islamic law? We will attempt
to state this theory in one paragraph, and then analyze it.

‘The Orientalists, in general, maintain the view that Islamic
legal theory, by which we mean a system of interpretation, did
not exist before al-ShAfL,’ The law before him was based on

“This le widely accepted not only im the West, bat also in the Muslim world
The reason is that the firet book on legal theory was written by al-Shafi'l. Wael

m4 Lessons From Legal History

“personal opinion” (ra’y) and Umayyad practice? The theory
presented by al-Shafi't was accepted, with some modification,
by all the Sunni schools after him, however, this “{eJommon
legal theory, the discipline of wsil si-fikh, has little relevance
to the positive doctrine of each school,"* because the essen
tial features of the law as we know it were already visible by
the year 132 of the Hijrah, much before al-Shifi''s time:* The
positive doctrine (that is, figh) itself was a jurists law basod
on the analogical method and, therefore, rigid. The result was
that legal fictions or caauistry had to be resorted to for coun-
tering this rigidity and for bridging the widening gap between
theory and practice *

‘he fundamental assumption underlying this view, or views, is that
Z there has always existed a gap between the law propounded by Mus
lim jurists and the actual practice of the Muslim state, From this
it follows that if the law derived by the jurists could not meet the
needs and demands of an ever growing empire it must have been
rigid. This appears to be their logical conclusion. In support of this
view, it is claimed that the hiyal—referred to as legal fictions
some and casuistry by others—were employed to counter the effects
of this rigidity, which in turn confirms that the system was in fact
rigid. The following main points can be recognized in these views of
the Orientalists:

B. Hallag im a recent article has challenged the view that alShAfi'T was the real
architect of Islamic jurisprudence. See section 10.1.1. in this book.

This conclusion abost personal opinion is widely accepted, while the con
clusion about the law being based oo Umayyad practice was drawn by Joseph
Schacht. [t is inked to his thesis about the apocryphal nature of the traditions,
the idea being that Umayyad practice was converted into traditions and then
converted into law, while Umayyad practice itself wax based on materiale and
inatitetions drawn from Romas law and Jewish law. This inyue has received con-
siderable attention from Muslim as well ax Western writers. Notable among them
‘are Fuat Sergin, Nabia Abbott, and A'zami. These acholare have tried to show
‘that Schacht’s thesis is wrong. Many Western scholars, however, still cling to the
original thesia formulated by Schacht and those before him.

"Schacht, Introduction, 60,

"This conclusion was drawn by Schacht. He says: “When the Umayyads wore
‘overthrown by the ‘Abbasids in 132 of the hijrah (A.D. 750), Islamic law as we
know it had acquired its easential features; the need of the Arab Muslim society
for a new legal system bad been filed,” Ibid. 49.

“These conclusions were drawn by a number of Western scholars

Tueories oF IsLamic Law 275

1. That there is a common legal theory, also referred to as the
classical legal theory. This theory, it is claimed, did not have
anything to do with the development of the substantive law
found in the figh manuals, because the main features of the
law as we find it with us today were developed by the year 132
‘of the Hijrah. This law was subsequently recorded in the man-
uals compiled by Mubammad al-Shaybani (d. 189 A.H.) to be
followed by the writings of al-Shafi' and al-Mudewwanah al-
Kubrd of the Maliki school. In addition to these, Imam Malik
had compiled his ol-Muwatta’ The legal theory referred to as
the classical legal theory or ugiil al-figh was refined and final-
ized much later, because it is not the same theory as that ex-
pounded by al-Shafi't. The claim, therefore, is that as the law
was developed earlier, while the theory to develop the law was
finalized later, this common legal theory or the classical theory,
also known as the discipline of ugul al-figh, has nothing to do
with the law itself.

2 That the earlier jurists used personal opinion (ra'y) and, there-
fore, did not have a determined methodology for the derivation
of the law. They relied on Umayyad practice and some forms
of analogy. As the jurists employed analogy and not the ana-
lytical method, the law they had developed soon became rigid.
‘This characteristic is also reflected in Roman law developed by
the jurists.*

When the law became rigid, the changing needs of the state
were not met. As a result of this, the state developed its own
institutions that had nothing to do with the shari’ah. The Ori.
entalists call these the extra-shar! laws. In other words, the
laws and institutions developed by the state, as ditinct from

“The idea that Islamic law was a jurist’s law relying upon analogy was first in-
idea

276 Lessons From Legal History

the theoretical law of the jurists, were deemed to be secular in
nature by the Orientalists,

‘The Orientalists, therefore, see the legal activity of the Is-
lamic state progressing through two conflicting or antagonistic
spheres. On the one hand, there was the law of the jurists that
had become rigid and was developed in theory. This law, they
maintain, often developed in political opposition to the state.
‘The state, on the other hand, developed its own institutions
and laws to meet its needs. These two conflicting spheres con-
tinued to move away from each other with the result that the
gap between theory and practice widened.

A question that may be raised here is about the claim of the Ori-
entalists that many of the traditions in hadith literature are apoc-
ryphal in nature. This question concerns the statement that the ju
tists relied upon Umayyad practice. By this they mean that moat of
the traditions draw upon the practice of the government during this
period and indirectly become a basis for the law, Umayyad practice,
it is maintained, drew upon the materials and institutions of Roman
and Jewish law, This point has not been taken up in this study as
it has been adequately explained by scholars like Fuat Sezgin and
A‘zami, as well as by Nabia Abbott

The impact of this theory may now be ganged. It implies that
the Muslim state never followed the theoretical Jaw of the jurists, but
adopted its own secular laws. The law of the jurists was, therefor
confined to the area of the ‘ibddét and a few matters of personal
In short, the part of the law that is being followed today by Muslim
minorities in non-Muslim countries and even in some secular Muslim
countries. Further, the law of the jurists was not developed through
the methodology that is laid down in usul al-figh, rather it was based
‘on traditions that in turn were based upon early Umayyad practice,
The discipline of usaf al-figh is, therefore, a theoretical discipline
having nothing to do with the law itself.

‘The present study has discussed these matters at some Jength and
has shown that such claims were misfounded. After beginning with
the two major themes, we have attempted to explain the structure
of the law. This was followed by an explanation of various theories
of interpretation and their relationship to the derived law, The role
and function of each theory was pointed out. In the context of this
explanation, it was pointed out that although the spheres of the
jurist and the state appear to be different in Islamic legal history,

cad

‘THeories LAMIC LAW Pisa

these spheres are not not in mutual conflict. On the other hand, they
pertain to the unique design of the Islamic legal system as indicated
by the wider doctrine of hadd. The jurists had a specific role to
perform and they performed it well. The state had its own duties to
perform within the legal sphere. In certain periods the Muslim rulers
fulfilled this duty to the best of their ability, while in others they did
not perform admirably.

‘We may now ook at the results arrived at during this study.
These results not only throw light on the nature of the Islamic legal
system and its structure, but also point to the direction that the
Muslims may adopt in the development of their law,

We commenced this study with two major questions. The first
question was whether there is a common theory of Islamic law? Sec-
ond, whether there was a separation between the law derived by the
jurists and the legal activity of the Muslim state? In response’ to
these questions, our study revealed the following results:

1. That there is no such thing as a common legal theory in Islamic
Yaw. A common legal theory is a figment, in the main, of Joseph
Schacht’s imagination. When there is no common theory, it
obviously cannot have anything to do with the substantive law,
It is the individual and independent theories of the schools of
jaw that are interlinked with the substantive law, irrespective
of this law being derived prior to the year 132 of the Hijrah or
later,

|. That the writing of a book on legal theory in no way indicates
that there was no methodology of interpretation that the earlier
jurists followed, that is, prior to the writing of such a book. It
was pointed out that there are two approaches to the derivation
of a legal theory. The first is to analyze and study the work of
well known jurists and judges and to identify the methodology
that they followed. This was the method adopted by the Hanafi
school as many of the well known jurists of those times were
also judges or gadis. It is also the method followed by legal
philosophers of the major legal systems of the world today.
‘The secand method is to lay down rules of interpretation and
to make it binding for the jurists and judges to follow those
rules during adjudication and the derivation of the law. The
second method was followed by Imam al-Shafitl, who prescribed
such rules in his book al-Risalah, as well as elsewhere. Both
approaches can have much in common, and one method cannot

S

y

278 7 Lessons From Legal Histo

be said to be better than the other, nor does one imply 1}
absence of the other.

3. There is not one but several theories of Islamic law, and by th
we mean several systems of interpretation. Each of these sy
tems is highly developed and is analytically consistent with
itself, The early systems can be classified under two main met!
‘ods. The first method is inclined more toward the derivatio

| of the law through general principles and is based wpon th
analytical rather than the analogical method, contrary to wha
Schacht has stated, though it also employs analogy. The aecon
method is a method of interpretation, and it gives pre
erence to the literal meaning of the texts of the traditions ove
the general principles emerging from the texts. Thus, it Insist
on tying every derived Jaw to its evidence (dalif) and ensure
that this should also appear to be xo. By this we mean that th
former method employing general principles also insists upo
| tying the law to its legal evidence in the sources, but it may no
always appear to be #0 to the layman, who is not well verse
in the legal reasoning employed

4. The method ot theory employing general principles was fol
lowed by the Hanafi jurists. The Maliki school has many fea
tures that are similar to those of the Hanafi system of interpre
tation. This system of interpretation, being based wpon flexibl
general principles derived from the texts, led to the rapid de
velopment of the law in the early stages of the legal system
The law derived on the basis of this system is followed by th
Hanafi school, It is, therefore, incorrect to say that this metho
did not have anything to do with the law. The reason is tha
this method has been derived by later Hanafi jurists from th
derived law itself, that is, from the cases settled by the Imam:
of this school. It is significant that this method is followed bj
the legal philosophers all over the world today.

4. The adoption of general principles emerging from the texts an
their occasional preference over the literal meaning of the texts
had led some laymen to assume that law was based upon ra’
(personal opinion). The use of ra'y, as distinct from its litera
connotations, it nothing more than the following of genera
principles derived from the texts of the Qur'an and the Sun
nah. As a result of this misfounded assumption of laymen a

y Tueories oF Istamic Law 279

. controversy arose about judge made law and the literalist ap-
proach. Such controversies are found in legal systems to this
day, This gave rise to the movement of the Ahl al-Hadith.

6. Imém al-ShAAY tried to find a middle course between these
two views, and laid down his theory of interpretation in his
book al-Risdlah. His theory was much more strict, as compared

i to that of the Hanafis, insofar as it tried to stay close to the
e literal and apparent meaning of the texts in preference to the
: general principles. This theory was modified somewhat by the
i later ShafitT jurists. ‘This modification by the later jurists was

: accomplished over a period of two centuries, The main changes
introduced by them were made in al-Shafi'ls views on ijma’ and
in his methods of analogy.

,

. . Al-Sh&f'T's theory was followed by an even more strict the —

. ory. This was the theory propounded by the Zahiris, who re-

: jected analogy, and upheld the adoption of the literal meaning.

Y of the texts. A later theory was attributed to Imam Ahmad iba

k Hanbal by his disciples. His views were more or less similar to
those of al-Shasi, except that he would prefer the literal and
apparent meanings of weaker traditions to the implications of
analogy.

8. The views of al-ShAf'T and Im&m Abmad ibn Hanbal can be

: classified under the strict theories of interpretation, along with
those of the Zihiri school that disappeared from the scene af

tor initial success. Here it may be said that al-Shafi'T used hin

’ ‘own theory to develop the law in his book al-Umm. It cannot,
therefore, be anid that his theory did not have anything to do
with the law, as claimed by Joseph Schacht,

~

The methods laid down in each of these theories are equally
valid ways of deriving the law, and are deemed as such by the
Muzslims following the Sunni schools, Each school still follows
its own method, but respects the views of the other schools as
well as their right to follow their own method.

: 10, By the end of the fifth century Hijrah, Imam al-Ghazali came
up with a somewhat new theory based upon-the purposes of
law or the magayid al-shari‘ah. He did not claim that it was
a new theory, but to anyone studying it deeply it would be
obvious that it has some new features that entitle it to have a

280 Lessons From Legal Histor

place among the well known methods of interpretation of th
other imdms. He borrowed methods from each of the earlie
imams and incorporated them in his theory. Perhaps, it ws
this that led Joseph Schacht to conclude that legal theory ha
nothing to do with the derived law. In other words, he equate
the entire discipline of ugal al-figh with al-Ghazali’s theory
This would be an erroneous assumption, hecause-al-Ghazali
theory has not been put to practice as yet. Tt was designe

Al-Ghazali’s theory will have much to do with the law of th
future that is developed by Muslim states in the present age.

11. The separation between the legal activity of the state and th
writings of the jurists does not follow the pattern assumed b
Western writers. The jurists were concerned with the eterni

y part of the law that could be derived directly from the text
This law would be applicable whether the state was Islatnic c
one where a small Muslim minority lived, It was a law tha
dealt mostly with worship and personal matters like marriags
divorce, and inheritance. The jurists also derived the law per
taining to some criminal penalties, because these were explicit!
mentioned in the texts, and it was their duty to derive this la
and ensure its implementation wherever this was possible. Th
jurists left the rest of the law for elaboration by the rulen
who were to derive it according to specific methodology an
for whom they stipulated that they be full mujtohids, that i
persons able to derive the law independently, The area of th
Jaw entrusted to the ruler was not mentioned explicitly in th
texts. It was to be derived from the general principles emerg
ing from the texts and was expected to change with change i
circumstances, This idea was illustrated through the image ¢
a growing tree in the earlier chapters,

12. The methods of interpretation advocated by the earlier schoo!
were suited to the function of the jurists by exercising whic
they derived the law that was available through the texts, e
ther explicitly or implicitly. The area in which the rulers ha
to make the law was an area where specific texts would nc
be available, except in rare cases, The rulers were in need ¢

"It he did, then, it would mean that be coald not distinguish between the wor
of al-Shaf'i and al-Ghasall, because he attributes everything to al-Shafi't.

f

of Istamic Law 281

general principles and Imam al-Ghazili laid down a detailed
methodology for them through which they could derive, refine,
and apply the general principles of Islamic law found in the
Qur'an and the Sunnah,

13. In different periods, Muslim states did make laws within their
own sphere, while in other periods there was little development.
‘The activity of the state did continue, however, during the
Ottoman times in Turkey and during the days of Awrangzeb
‘Alamgir in India. The Muslim world was then subjugated by
the colonial powers and the remnants of the institutions estab-
lished by the state disappeared. It is, therefore, not correct to
say that the fugahd’ did not develop the law and succumbed to
taglid. The fugaha’ did develop the law and refined it within
the area of their jurisdiction. The remaining areas were the
responsibility of the state.

14, The role of the jurists and the rulers is, therefore, visualized in
the form of two cooperating spheres, where one sphere is fixed
and governs the other sphere that is flexible, changing with the
times.

15. Islamic states today, more than ever, are in need of discovering,
and deriving the general principles found in the Qur'an and
Sunnah, in the light of which they can develop their law. The
methodology for finding these principles has been described in
detail by Imam al-Ghazali.

From the foregoing results we can see that the role of the j
and that of the rulers was clearly defined from the earliest days of
Inlamic law. The jurists focused on that part of the law that was
derivable directly from the texts, because it was either explicitly
stated in the texts or could be derived through strict methods of
interpretation. The rulers generally dealt with new situations using
the general principles of the shari‘ah available in the Qur'an and the
Sunnah. The separation between the activity of the state and the
writingsof the jurists was intentional, because of the structure of
Islamic law and the design of the Islamic legal system, and it was
carried out under the principle of separation of functions in a spirit
of cooperation. There was not one but several theories for developing
the law within the domain of the jurists, and each of these theories
was used to evelop the law of 2 certain school. The new theory,

282 Lessons From Legal Histor

or ideas, advocated by Imam al-Ghazali were for the benefit of th
rulers, who were to derive general principles and apply the law t
new situations in the ever-changing sphere.

This, iple terms, is the theory of Islamic law that emerge
from our study. It is presumably not perfect. It does, however, al
tempt to explain the growth, structure, and nature of Islamic law
& way that avoids contradictions, One point that stands out in th
entire study is the need of a methodology for the discovery and appli
cation of general principles of Islamic law. How are these principle
discovered and what are their different categories? Providing answer
to these questions was a major goal of this study. We now turn, onc
again, to the ideas of al-Ghazall to see what these principles are an
how they may be discovered.

14.2. The principles of Islamic law

In the second part of this book, while discussing the methodology «
the Hanafi school, an explanation was provided about the meanin
‘of the term “principles.” It would be helpful to recall what was sai
there. Roscoe Pound, while elaborating the idea of law according t
the analytical jurists, said that it contains three elements: a precep
clement, a technique element, and an ideological element. By precep
four things are implied: rules, principles, standards, and conceptions
A rule is a legal precept attaching definite detailed legal consequence
to a definite detailed set of facts, This is the earliest type of precep
and the provisions of the Penal Code, for example, would contai
many rules. A conception is a legally defined category into whic
cases may be fitted in order to facilitate the application of a series «
wiles and principles, for example, sale, bailments, trusts, and so or
‘A standard is a measure of conduct prescribed by law from whic
one departs at his own peril, The standard of due care is an example
A principle, on the other hand, is an authoritative starting point fo
legal reasoning from which we seek grounds of decision by deduction
Principles are the work of lawyers. They organize the experience «
interpreting and applying the rules, In modern law, principles ar
said to come into operation in “hard cases.” These are cases wher
the text of the statute fails to provide a direct answer. The judge
in such a case, would search for a general principle that would cove
the particular set of facts. Melvin A. Eisenberg explains principles 3

Tueories oF Istamic Law 283

When principles and rules are conceived in this way, principles
may seem as explanations for rules, in the sense that we com-
monly invoke general propositions to explain those that are
more specific. However, the force of principles is not merely
explanatory. Principles, like rules, are binding legal standards,
and often determine results without the mediation of rules.*

In the English common law, principles are laid down in ancient
decisions. These principles have been refined over the ages in later
judgements. Whenever a judge needs a principle, he looks for it in the
‘decisions of the courts. In the case of Islamic law, general principles
as’ well as rules are laid down in the Qur'an and the Sunnah.

‘The Hanafi jurists, who used general principles, either found them
stated explicitly in the texts of the Qur’an and the Sunnah or they
constructed these principles around the general words bearing the
ahkam. These jurists would also formulate principles after analyzing
‘a large number of similar rulings. Thus, al-Dabisi states: “The world
according to us (Hanafis) is divided into two parts, while according to
al-Shafi'l it is one and indivisible.”® This is a general statement that
means that the Hanafis distinguish between the ddr al-Isidm and the
dar al-harb for purposes of the criminal law, while Imam Shafi'i does
not. A large number of cases are settled according to this principle.

‘Al-Ghazll converts the discovery of the general principle into a
theory, He states that principles are of three kinds, and each of these >
is discovered in a defined way: y,

|

Li Petiaicien Habed Geoteelly bathe teins Thotnc ice |
of principles are those that are stated explicitly in the texts of
the Qur’in and the Sunnah. These are like the principle about
the prohibition of ribd emerging from a Qur'dnic text, as well |
as its supplementary principles stated in the traditions. This
was discussed in the methodology of the Hanafites in the pre- \
vious chapter. The principle stated in the text of the Qur'an
is read by the jurists as implying: “All sales are permitted, ex-
cept those bearing riba.” Another example from the traditions
is that “eligibility for profit is based on a corresponding liability
for bearing loss."

"Melvin A. Eisenberg, The Noture of the Common Law, 76-17,
*AbDabiisi, To'sis of-Nasur, 58.
\ Alckhardy bi al-daman.

aL

284 Lessons From Legal Histor

He calls these principles the mu'aththir mundsib principles, be
cause they are stated in the texts and the underlying cause
assimilated under them conform with the purposes of the law
In fact, the purposes of the law have been derived from such
principles. As these principles are stated in the texts, they are
to be followed even when they do not conform with the pur
poses of the law; they are still effective (mu’aththir), because
they have been explicitly mentioned in the texts. The number
of principles stated explicitly in the texts are many, but limited
nevertheless.

2. Prineiples derived from the underlying hikmah of the
texts: The second category of principles are derived princi-
ples. This category of principles has been called mula'im by
al-Ghazill. The muld'im is a principle that has been derived
directly from the texts. This means that it is not explicitly
stated in the texts, but is derived from the hikmah related tc
an underlying cause (‘illah),

In a hypothetical example discussed within the theory of the
purposes of law, we derived a broad principle from a rule that
was specific to a set of facts. This was the underlying cause of
“minority,” which was first generalized to yield the category of
“inability (‘aje).""* Through this the hukm of guardianship was
extended from the minor to all those persons who were unable
to look after their own affairs. The insane person was, therefore
covered by the principle. This was further generalized to yield
the principle of necessity (dariirah)." The hukm of guardian:
ip was extended in the case of financial mismanagement tc
apply to other cases. Here we said that this principle would
today justify the appointment of receivers or manager for cor-
porations in difficult straits, when the money of the public was
involved.
These generalized categories are no longer specific underlying
causes, but are flexible general principles. The distinction is
that the underlying cause is always something stated or indi:
cated in the texts, while the generalized principle is not explic-
itly stated, though it may be obvious. The underlying cause
is more like a rule, while the derived principle is its explana-
tion. In the example provided above, “minority” is not the real

"See Sadr al-Shart'ah, al Tawdth, i, 572.

Tuzonies oF Istamic Law 285

reason for extending the hukm of wiléyah; it is, in fact, the
inability of the minor to give a legally valid consent. We, there-
fore, move one level up and determine “inability to consent” to
be the cause.

‘This brings us to the second attribute. The generalization
this level is based on the hikmah (wisdom) behind the text.
‘The attribute of inability to consent is, therefore, a kind of ex-
planation for the ‘illah of minority. Such a cause is avoided in
strict analogy because it is not very stable for certain cases. For
example, if the cause of inability permits us to extend the hukm
of wildyah to the ma‘tth of a somewhat retarded person, who
is not a minor, the cause may not hold true for all such per-
sons, depending on the intensity of the handicap. If the cause
is generalized at a still higher level, we arrive at the attribute
of “necessity,”** and this enables us to extend the hukm to the
safth (prodigal, spendthrift), When this person is not a minor,
there might be some injustice involved if he is not allowed to
do what he likes with his fortune. The derived principle may,
therefore, require the jurist to focus on the result of his ijtihéd,
and not on the derivation of the correct cause alone.

The relationship between the specific rule, that is, the ‘illah
and the general principle that is based on the hikmah (wis-
dom) may be explained through Eisenberg’s statement quoted
two pages back, where he emphasizes that “when principles and
rules are conceived in this way, principles may seem as expla-
nations for rules, in the sense that we commonly invoke general
propositions to explain those that are more specific.”.*

In exactly the same way the principles based on hikriah are
considered as binding law, and not mere explanations, in al-
Ghazali’s theory. He insists, however, that such gener:

rules can be applied only if theymeet two conditions.\

that these principles should conform with-the purposes of the
Jaw, that is, they should be mundsib. Second, they should not
clash with the general practices of the law, that Is, they should
be consistent with the rest of the law. This is what is meant
by being fnuld‘im in al-Ghazili’s terminology: It is the analyt-
ical consistency and compatibility with the rest of the general

[bid, 573
"Eisenberg, The Nature of the Common Law. 77.

286 Lessons From Legal History

principles of the law. Al-Ghazali's purpose in stipulating these
two conditions of mundsabah and muld'amah was to restrict
L. the uncontrolled use of the hikmah for the derivation of the
> principle. The possible implication was that these conditions
will make an unstable cause based on the hikmah more stable
and in tune with the rest of the law.
The number of these broad muld im and mundsib principles can
be as much as the underlying causes determined by the texts
or much more.

The principle introduced by the jurist: This type of prin-
ciple is the mursal It is a principle that is not derived from
the texts by generalization, but seeks its authenticity through
mundsabah and muld’emah, that is, it conforms with the pur-
poses of the law and is consistent with the rest of the law. These
conditions are expressed by al-Ghazall in a somewhat different
way:

© The principle derived by the jurists should not be gharib,
that is, alien to the law, It should conform analytically
with the other propositions and principles of the law.

¢ It should not clash with the nagy (text)

© It should not attempt to alter the implications of the texts,
that is, the general propositions and the principles of the
law.

=

The details pertaining to this type of principles and their con-
ditions were explained earlier. It can be seen that the number
of these principles will be unlimited depending upon the genius
and ingenuity of the judge and lawyer.

Out of the three categories mentioned above, the conditions stip-
ulated by al-Ghazali apply to the last two. The first of these con-
ditions is that the principle should not clash with the rest of the
propositions of the law (tasarrufat). By this he means other general
principles, This is achieved by the jurists when he cheeks the derived
principle for analytical consistency with other principles. These other
principles have to be the principles of Islamic law and not those of
English common law or some other law.

‘The second condition is that the principles should conform with
the purposes of Islamic law. In the previous chapters a detailed ex-

Tueontes or Istamic Law 287

planation is provided about the operation and structure of these pur-
poses. The derived principle must not seek to convert the priorities
determined for the purposes or to subvert the interests they seek to
seeure.

14,3. The Scope of Ijtihad

Ijtihdd is not a source of law; the sources in the true sense of the
term are the texts of the Qur’dn and the Sunnah. It is an activity, a”
struggle, a process to discover the law from the texts and to apply
it to the set of facts awaiting decision. There are some who believe
that the law laid down in the texts is different from ytihad, which
they consider to be the activity of the jurists outside the texts, This
is incorrect. Whatever the jurists have said has been derived from
the texts through the methods of interpretation that we have been
talking about in this book. These methods taken together form the
system of interpretation that the jurist follows, and his activity or
effort to discover the law from the texts is called ijtihdd.

The first restriction that is placed on this activity is: There is no
‘ytthad within an explicit rule in the texts (4 Utihdda ma‘ al-nagg).
‘This implies that when the rule stated in the texts is so clear that
more than one meaning cannot be derived from it, the jurist is pro-
hibited from undertaking ijtihdd in it, The examples of these are: the
word “hundred stripes” or the words “cut off their hands.” Here the
words hundred has a single meaning, but the word stripes may be
subject to interpretation. Hundred cannot be converted to two hun-
dred. However, one may ask: what kind of stripes are intended here
with respect to the instrument used, the intensity of the stroke and
so on. In the cutting of the hands, the Aukm is clear that hands are
to be cut, but what is the exact meaning of the term yad, which may
extend from the elbow to the fingers, and whether the left hand in
to be cut or the right. Again, there may be questions about the thief
and about the value of the property stolen. These questions are first
answered on the basis of the texts themselves, that ir, through the
Qur'an and Sunnah, If a meaning is given in these texts, it becomes
the legal meaning and is to be followed, irrespective of its conformity
with the literal meaning of the word. When no explanation is avail-
able, the jurist looks for literal meanings and uses his own reasoning
‘and judgement to arrive at the appropriate answer. In this case the
literal and technical meanings would be the same.

288 Lessons From Legal History

All texts that are subject to interpretation or admit of interpreta-
tion are the object of the activity known as ijtihdd. The first method
used by the jurists, as explained that of literal
tion, We may refer to it as the-first mode of ijtihdd. When the set
of facts awaiting decision is not covered by Literal meanings and im-
plications, the jurist undertakes analogy. The form of analogy used.
here is very strict and goes by the name of giyds al~‘illah, This en-
tails the extension of the meaning to a new case from a single text
of the Qur'an or the Sunnah with a specific meaning on the basis of
a common underlying cause. We may call this the second mode of
ijtihdd. In case this method of extending the hukm does not-solve the
problem, the jurist undertakes the extension by considering the texts
collectively, that is, by looking at the spirit of the laws. This is the
area that has been described by al-Ghazali in his theory, and that we
have been discussing above with respect to general principles. The
jurist uses the general principles of the law by referring them to the
‘magdgid al-shari'ch and checking them against these purposes, We
may call this the third mode of ijtihad:

For the first two modes, It if necessary that the jurist know the
Arabic language, the science of ugil al-figh, as well as the texts. Imam
al-Shifi' laid down conditions for such a jurist, and these conditions
are not impossible to fulfill. For the third mode of ijtihdd, writers
like al-Sh&tibi are lenient, and they maintain that it is possible for
a person to derive the law through the magdgid al-sharf'ah even if
he does not know the Arabic language, because meanings are con-
veyed by the principles themselves. It is suggested, however, that the
derivation of the law entails a heavy responsibility, and it is better if
the person interpreting the law is well qualified.

In the previous discussions we have conceived the structure of
Islamic law in two cooperating spheres. The first sphere falls within
the domain of the jurist, while the second is within the jurisdiction
of the ruler. The main question that we would like to raise here is
whether there is any need for further ijtihdd in the area that has
already been settled by the jurists? To be more specific, is there
any need for ijtihdd and the derivation of fresh rules in the area
of the ‘ibdddt, in the area of inheritance, in the area of marriage
and divorce, or in the area of the hudiid penalties? This question is
somewhat difficult to answer, and it would be better to consider these
case by case. In the area of the ‘ibédat, almost everyone would agree,
that there is little need for further ijtihdd and what the fugahd’ have
decided what is to be followed. In the sphere of the law of inheritance

Tueortes of Istamic Law 289

too the decisions arrived at by the fugaha’ seem, on the whole to be
definitive, though some would say that the assigning of half a share
to a woman should be reconsidered, as was done in the case of the
predeceased child of the propositus.'* The answer to this is that this
Is not a moot point. The texts clearly state that the share of the
male is twice the share of the female. The first restriction mentioned
above applies here, because there is no ijtihdd in the case of a specific
rule. It would be better to look into the entire philosophy of the law
of inheritance as well as family law to determine and understand
why the Lawgiver has divided the shares this way. The bulk of the
other laws derived by the jurists need no change, and the work of the
jurists spread over fourteen centuries may scarcely need alteration.
A few issues that trouble some pertain to administrative matters,
which can be settled by the rulers under his administrative or siydsah
jurisdiction.

Calls for ijtthad, therefore, must focus upon the area of the law
that falls within the domain of the rulers and this pertains to the bulk
of the law obtaining in countries like Pakistan. In other words, if the
law in based upon English common law, it needs to be converted and
changed according to the general principles of Islamic law. This is
the area to which we may turn in the next chapter.

"See §4 of The Muslin Family Laws Ordinance, promulgated in Pakistan in
1961

Chapter 15

The Modes of [jtihad

‘There are three modes of ijtihdd undertaken by the Muslim jurists.
‘This was stated in the previous chapter. The first mode corresponds
with literal interpretation where the jurist stays as close to the mean-
ing of the texts as is possible. The purpose is to discover the true
intent of the Lawgiver, The strict theories of law described earlier are
ideal for this mode. However, the Hanafi theory based upon general
principles provides greater flexibility even in this mode, In the second
mode, the jurist attempts to extend, through analogy or giyds, the
laws derived during the first mode to new situations not expressly
covered by the texts. The form of analogy employed by Muslim jurints
is strict, and some of its forms are very similar to literal methods,
‘This was explained in the earlier chapters. Qiyds, employed by Mus-
lim jurists, is not to be confused with analogy practiced in Western
law, which has a much looser form. The third mode of ytihéd comes
into play when the set of facts awaiting decision is neither stated
expressly in the texts nor can one of the laws derived in the first
mode be extended to this new situation through analogy. In such a
case, the jurist employs the thecry of interpretation based upon the
purposes of law. The essential difference is that in the jurist
solves. the legal problem by extending the. a text,

while invoking the purposes or the spirit-of the Jaws means looking
at allahe ert ora group of testa. goectvely Inthe Uight of their
purposes, In this mode, the Jurist is required to work on the basis of

general principles of the law when these principles conform with the
purposes of the shariah.

‘There are some cases in Islamic legal history from which the ju-
rists derived inspiration to formulate their theory about the purposes

292 The Modes of Ijtihac

of law. Nevertheless, the third mode of ijtihdd has not been employet
very frequently by the fugaha’. The reason is that this mode of ijtihac
is meant to be exercised by the imams, that is, the rulers, who dea
mostly with public law rather than personal law, and who usually
‘employ the general principles of the shari"ah to frame the laws or t
provide relief,”

‘These methods of interpretation, in their refined form, were not
available to the jurists right from the first day, even if the method:
are based on early precedents. Legal theory evolved slowly, as ha
been shown in the three broad trends traced in the second part o}
this book, to emphasize the need and use of general principles within
the framework of the purposes of law. These methods lay dormant
during the greater part of the colonial period, but are today waiting
to be employed, refined, and extended by Muslim judges and lawyers

‘Today, the situation in the Muslim countries has become very
complex. If we could, for example, identify with ease the role of the
Jurist as distinet from his judicial function and further distinguish
it from the role of the ruler in the earlier days, it is not possible tc
do 0 today, because the state has acquired a complete monopoly
of law-making; the only exception perhaps being the area of ‘ibédat
Even in this area, subjects like zakah fall within the domain of the
state. In addition to this, the modern state is required to regulate
‘areas that’ were not even known to the earlier states. In short, the
need for flexible general principles is immense. In Pakistan, where
English common law is still applicable, significant progress has been
made in the Islamization of the legal system, however, a systematic
and internally consistent methodology for the discovery and appli
cation of Islamic law is yet to emerge. We see various strategies in
operation all at once, It would be instructive to analyze very briefly,
in the light of our study in the previous chapters, the strategies for
Islamization being pursued in Pakistan. In doing s0 we will also refer
to the strategies that are proposed, but not followed.

*When we talk of the sind is the present content, we mean thireby all th
Jaw-malking institutions a9 well as the courts, because in Islamic law all gddé
derive their authority from the tmndry and exercise it on his behalf

Theories oF Istamic Law 293
15.1. Strategies of Islamization

15.1.1. The general approach in Pakistan

In Section 4.4 of Chapter 4, we discussed the approaches to legislation
and lawmaking where the texts of the shari‘ah have not expressly
laid down a rule. There we mentioned two broad approaches. The
first approach required that whatever is expressly prescribed in the
shari’ah by way of commission or omission is to be followed and the
remaining laws are to be considered as permissible or mubdh under
the principle that “the original rule for all things is permissibility.”
‘This approach is attributed by jurists to the majority schools and
even some Hanafi jurists have used it for specific cases.

The second approach requires that all things be considered pro-
hibited, unless their permissibility is justified on the basis of specific
or general principles of the ahari‘ah. In other words, each and ev-
ery provision of the law must be shown to be valid according to
the shart'ah, This approach is attributed to the Hanafi school, In
the present day terminology, we would say that justification through
principles of Islamic law is required by the first approach only for the
“occupied field.” The second approach requires that justification on
the basis of general principles must be provided for the “occupied”
as well as the “unoccupied field.”

It appears that the first approach is being followed in Pakistan.
‘The general practice is to strike down che offending laws as being
repugnant to the principles of the Qur'aa and the Sunnah, leaving
the bulk of the laws intact. Thus, for example, the promulgation of
the Hudiid Ordinances led to new provisions and also caused some
of the provisions of the Penal Code to be repealed.? The bulk of
the penal code is still intact and has not been affected; likewise, the
Criminal Procedure code, The assumption is that the remaining pro-
visions were not found to be repugnant to the texts of the Qur'in
and Sunnah. The same can be said of the law of evidence and many
other statutes. The remaining statutes are undergoing the same pro-
cess. This is not to say that this assumption is incorrect, because all
these laws have been carefully reviewed. The problem is that many
of these laws contain within them concepts that represent “the ulti-

* Additional sections will be repealed by the new law of retaliation (gi9d9),

The Modes of Ijtihe

mate ideas of Western civilization,"® and we can never be sure he
they conform with the shariah.

‘The second approach would require that even if the existing pr
visions of these statutes are not found to be repugnant to the tex
of the Qur'an and the Sunnah, they must be shown to be so, Es
and every provision of the law must be justified on the basis of t
general principles of the shari‘ah. It must be shown how and wi
‘a general principle goveras a rule laid down in the statute, This,
course, is a gigantic task and will take much longer.

Why is the second approach to be preferred? The reason is that
the case of the provisions that are expressly declared to be Islami
like the provisions of hadd in the Hudid Ordinances, it is obvio
what the governing principles are. In case of doubt, recourse ce
always be had to these general and governing principles for arrivi
at the right decision. In the case of the provisions left intact, 1
governing principles are, those of the English common law. T!
principles are to be found in the decisions of the courts, Whenev
the judge is faced with a “hard case,” according to the terminoloy
used by Ronald Dworkin, or he is dealing with the “open textu
of the law,” according to'the description provided by H.L.A, Ha
the judge will always have recourse to the principles of the Englis
legal system, because these principles determine the purpose at
seope of the provision applied. Further, these principles are readi
available and it in easy for the judge to have recourse to them. Ev
when the judge wishes to employ the principles of Islamic law, |
will have to undertake extensive research himself, or he will have |
go through the lengthy process of consulting experts. On the oth
hand, if the law has already been explained and justified in tern
of the principles of Islamic law, the judge will find ip easy to gi
fnew meanings to the statutory provisions. Justification of all t!
provisions of the law in the light of the general principles of tt
shari'ah will also promote understanding of the Islamic legal syste
and lead to further development.

‘The proposal, therefore, is that we should stop thinking in tern
‘of converting only five percent of the laws that are found to be repu
nant to the texts of the Qur'an and the Sunnah, These five perce
laws must be converted, but the remaining ninety-five percent mu
be shown to be valid in terms of the general principles of the shari‘a

“Jerome Hall, General Principles of Criminal Law (New York: Bobbe- Mert
Co, Ine, 1960)

‘Tueorties oF IsLamic Law 295

It may be said here that justifying the remaining part of the law
in terms of the general principles of the shari‘ah is not the responsi-
bility of the law-proposing or law-framing institutions; rather it is the
task of the judges, lawyers, and law teachers, Judges should start us-
ing the principles of Islamic law in elaborating upon the provisions of
the statutes; lawyers should assist the courts in understanding these
principles; and law teachers should support both judges and lawyers
by writing treatises and commentaries explaining each provision of
the law. This is true. It is the responsibility of these three groups
of persons to expound the law and its principles. Yet, questions of
methodology are as important as the law itself. A proper methodol-
ogy ensures analytical consistency and avoids resource-wasting con-
tradictions in the law. It would be much better if the Council of
Islamic Ideology, the institution responsible for the Islamization of
the legal system, were to explain and publish its legal reasoning for
each provision that it formulates or proposes. It is obvious that the
Council undertakes extensive research on each provision, but it does
not publish its reasoning, nor has it ever thrown light on the theory,
of interpretation it employs. If the Council were to do this, a great
service would be rendered to the legal community, who would be
able to understand the laws framed in depth. This will also enable
the Council to obtaining feedback from the lawyers or scholars and a
continuous process of refining and reforming the law would be set in
motion. The work of the Council should be supported by the Islamic
Research Institute. The Institute should publish extensive commen
taries on the law promulgated as a result of the efforts of the Council
Purther, the Institute should also arrange to publish commentaries on
the provisions that have been retained unchanged in the law. These
commentaries would obviously be undertaken in light of the general
principles of the shari‘ah, explaining what principle underlies which
provision. The Institute has done considerable work on the law, but
it is the provisions of the existing law that need immediate attention
‘The truth is that the Islamic Research Institute is perhaps the only
body in Pakistan that has the resources to undertake this gigantic
task.

15.1.2. Codification

It has been suggested that the entire law should be re-codified in
the light of the injunctions of the Qur'an and the Sunnah, Partial
exercises of this nature have been undertaken in Egypt. In our view,

26 The Modes of ljtihad

this strategy is not likely to prove very fruitful, because the real need
‘Of the judges is for the general principles in the light of which the
meaning, purpose, and scope of each provision is determined. This
can be done with the existing provisions, as suggested in the previous
section. Once the judges of the superior courts start using the general
principles for interpreting the statutes, the existing provisions will
automatically acquire new meanings. Further, codification of the law
afresh will lead to uncertainty in the law. Certainty is an essential and
acknowledged characteristic of the law, It helps the lawyer to predict
for his client how the court will decide a matter, and the client acts
or decides accordingly. If such predictions become uncertain, people
are likely to face considerable hardship.

15.1.3. Applying the unwritten Islamic law

It has sometimes been suggested that the fastest method of Islamiza-
tion is to treat the entire law as wowritten and to require the judges
to decide cases through the unwritten Islamic law. The argument is
that this method was followed for the Islamic law itself in the early
days, when no law codes enforced by the state. Further, it is well
known about English common law in which the judges of Pakistan
are trained. Why, then, the proponents of this view ask, is it not
possible for judges today to decide according to Islamic law when &
vast legal literature is available to them and there are experts who
can help them through the initial phase till a considerable body of
legal precedents is evolved? The main argument against this is again
that of uncertainty, mentioned above. This strategy is likely to lead
to chaos, thus causing extreme hardship for the people. In certain
cases, as in the criminal law, certainty is an essential requirement,
and its absence would amount to injustice and a violation of the
principles of nullum crimen sine lege and nulla poena sine lege.

15.2, Ijtihdd and the rule of recognition

How was the law declared as valid Islamic law in the past and how is
it declared valid today? This question goes to the heart of the process
of ijtihad. To understand this process we may quote H.L.A. Hart in
the attempt to understand what he means by the rule of recognition
that identifies a law as valid in a modern legal system.

According to Hart, the rale of recognition is a rule that provides
the criteria by which we judge the validity of other rules. In this

‘Tusories oF Istamic Law 297

sense the rule of recognition is an ultimate rule. This rule has two
manifestations represented by an internal statement and an external
statement. The external statement is made by an outsider, who views
Ube operation of the legal system objectively. Thus, an outsider would
say that “whatever the Queen in Parliament enacts is valid law.” Hart
says:

‘The existence of this simple form of rake of recognition will
be manifest in the general practice, om the part of officials or
private persons, of identifying the rules by this criterion. In a
modern legal system where there are a variety of “sources” of
law, the rule of recognition is correspondingly more complex:
the criteria for identifying the law are chultiple and commonly
include a written constitution, enactment by a legislature, and
Judicial precedents. In most cases, provision is made for pos-
sible conilict by ranking these criteria in an order of relative
subordination and primacy. It is in this way Uhat in our aystem
“common law” is subordinate to “statute.”

It ts important to distinguish this relative subordimation of one
criterion Lo another from dervwation, since some spurious aup-
port for the view that all law is essentially or “really” (even if
only “tacitly”) the product of legislation, hax been gained from
the confusion of these two ideas. In our own system, custom
and precedent aze subordinate to legialation since customary
‘and common law rules may be deprived of their status as law
by statute, Yet they owe their status of law, precarious as this
may be, not to a “tacit” exercise of legislative power but to
the acceptance of a rule of recognition which accords them
this independent though subordinate place *

‘He means that the act of legislation, which appears to the outsider
to be the sole rule of recognition, is not the only rule, and there age
other rules of recognition that are operating within the system. “For
the most part the rule of recognition is not stated, but its existence
is shown in the way in which particular rules are identified, either
by courts or other officials or private persons or their advisers.”*
He compares these persons to those playing a game and the rule of
recognition is like the scoring rule of the game. These people are the

“HLA. Hart, Concept of Law, 98.
"bid.

298 ‘The Modes of Ijtihad

insiders, and it is their view of the rule of recognition that he calls
the internal statement: “The use of unstated rules of recognition,
by courts and others, in identifying particular rules of the system is
characteristic of the internal point of view. Those who use them in
this way thereby manifest their own acceptance of them as guiding
rules and with this attitude there goes a characteristic vocabulary
different from the natural expressions of the external point of view.”®

‘What Hart is saying, in effect, is that the external statement
maintaining that a law has been enacted by parliament is not enough
for the validity of alaw. The law must be internalized by the insiders,”
the actors within the system. It is only this form of recognition that
inds efficacy to a system and the law comes to be generally obeyed.

‘What is relevant to our discussion here is that merely enacting
the law and declaring it Islamic will not be sufficient for its validity.
‘The law must be internalized by the insiders of the legal system.
‘The judges, the lawyers, the clients, the law-teachers, and in fact all
the citizens. Once the law has been internalized, its efficacy will be
ensured. This process of internalization can be accomplished when
the law in the statute books is linked to the real sources, the Qur'an
and the Sunnah, and to figh literature. If internalization is necessary
for custom and common law in the English legal system even though
these are subordinate to statute, such internalization by the inside
is & must in the case of the sources of Islamic law, which have a
higher status than all statutes and constitutions, The first step to
ensure that the insiders believe that the law is based on these sources
is to show that it is so by linking each provision of the law to its
egal evidence in the sharit'ah, that is, to a specific rule or a general
principle of the shan'ah.

In the Islamic legal system, the desire to ascertain what is valid
Islamic law led to the development of the schools of figh. The schools
brought uniformity into the law by selecting and preferring individual
rules from among, a large body of rules. Followers of a school were like
the insiders of a legal system. They internalized the law by having
faith in one school and its founders. The law within the school came
to be generally obeyed. There was no act of legislation to provide
validity to the law from the outsider's point of view. The follower of
‘one school could say with certainty: “This is the law.

“Ibid. 101

"This is just like the players of a game who adopt and accept the rules and
play the gare by those rules,

‘Tusortes or Istamic Law 299

If the barriers of the schools are removed, it becomes difficult to
say with certainty what the law is on a moot point, that is, on a
mujtahad fih (which does not include those matters in which there is
no scope for ijtihdd, that is, issues that are gat'f having been settled
unanimously and definitively), Would the law be the one followed
by the Shafi'T school or that followed by the Hanafi school, or any
other school for that matter? This problem can be removed if the
state steps in. The rule in such a case, as expounded by al-Qarafi in
al- Furiig, is: “When the hakim gives a ruling, all disputes vanish.” To-
day, the state exercises a monopoly on law-making, excluding some
areas of the ‘ibadét where the law of the schools still remains opera-
tive.

Without going into the question whether the state is qualified to
be a mujtahid, we notice that the situation is somewhat complex, In
Pakistan, for example, the process of ijtihdd is spread out between the
parliament (majlis shtird), the courts (including the Federal Shariat
Court), and the expert constitutional bodies like the Council of Is-
lamic Ideology and the Islamic Research Institute. The Courts or the
Council apply the repugnancy test and refer the matter to the par-
liament for legislation. The final decision rests with the parliament.
‘This has been reaffirmed recently in Hakim Khan v. the Government
of Pakistan, PLD 1992 SC 559. We have already referred to this in
an early chapter. The point to be made here is that enactment by
parliament will satisfy the outward rule of recognition, the oxternal
statement. What needs to be done for the internal point of view may
be stated in the words of Justice Shafiur Rahman;

‘The ascertainment of the absolute principles of Islamic Law
with regard to political power, its distribution and delegation
‘and financial institutions is itself a matter requiring detailed
study, thorough research and meaningful debate before acquir-
ing concrete shape so as to be adopted as a test of repugnancy
of the Constitutional provisions. It cannot summarily be done
Such an exercise can more appropristely be undertaken under
the control and supervision of the legislature and the expert
bodies like the Islamic Ideology Council and Islamic Research
Institute*

‘The learned Justice was referring here to the application of the re-
pugnancy test to constitutional provisions and to the pre-enactment

“PLD 1992 SC 634.

‘The Modes of Iitthad

lors, and it is their view of the rule of recognition that he calls
the internal statement; “The use of unstated rules of recognition,
by courts and others, in identifying particular rules of the system is
characteristic of the internal point of view. Those who use them in
this way thereby manifest their own acceptance of them as guiding
rules and with this attitude there goes a characteristic vocabulary
different from the natural expressions of the external point of view."®

What Hart is in effect, is that the external statement
maintaining that a Jaw has been enacted by parliament is not enough
for the validity of a law. The law must be internalized by the insiders,”
the actors within the system. It is only this form of recognition that
lends efficacy to a system and the law comes to be generally obeyed.

What is relevant to our discussion here is that merely enacting
the law and declaring it Islamic will not be sufficient for its validity.
‘The law must be internalized by the insiders of the legal system.
‘The judges, the lawyers, the clients, the law-teachers, and in fact all
the citizens, Once the law has been internalized, its efficacy will be
ensured. This process of internalization can be accomplished when
the Jaw in the statute books is linked to the real sources, the Qur'an
and the Sunnah, and to figh literature. If internalization Is nocessary
for custom and common law in the English legal system even though
these are subordinate to statute, such internalization by the insiders
is & must in the case of the sources of Islamic law, which have a
higher status than all statutes and constitutions, The first step to
ensure that the insiders believe that the law is based on these sources
is to show that it is so by linking each provision of the law to its
legal evidence in the sharit'ah, that is, to a specific rule or a general
principle of the shar‘ah.

In the Islamic legal system, the desire to ascertain what is valid
Islamic law led to the development of the schools of figh. The schools
brought uniformity into the law by selecting and preferring individual
rules from among a large body of rules. Followers of a school were like
the insiders of a legal system, They internalized the law by having
faith in one school and its founders. The law within the school came
to be generally obeyed. There was no act of legislation to provide
validity to the law from the outsider’s point of view. The follower of
‘one school could say with certainty: “This is the law...”

bid. 101.

‘his is just like the players of « game who adopt and accept the rules and
play the yame by those rules,

‘Tusortes oF Istamic Law 299

If the barriers of the schools are removed, it becomes difficult to
say with certainty what the law is on a moot point, that is, on a
mujtahad fh (which does not include those matters in which there is
no scope for ijtihad, that is, issues that are gat‘ having been settled
unanimously and definitively). Would the law be the one followed
by the Shafi‘ school or that followed by the Hanafi school, or any
other school for that matter? This problem can be removed if the
state steps in. The rule in a case, as expounded by al-Qarafi in
al- Furiig, is: “When the hakim gives a ruling, all disputes vanish.” To-
day, the state exercises a monopoly on law-making, excluding some
areas of the ‘ibadét where the law of the schools still remains opera-
tive.

Without going into the question whether the state is qualified to
be a mujtahid, we notice that the situation is somewhat complex, In
Pakistan, for example, the process of ijtihad is spread out between the
parliament (majlis shtird), the courts (including the Federal Shariat
Court), and the expert constitutional bodies like the Council of Is-
lamic Ideology and the Islamic Research Institute. The Courts or the
Council apply the repugnancy test and refer the matter to the par-
liament for legislation. The final decision rests with the parliament.
This has been reaffirmed recently in Hakim Khan y. the Government
of Pakistan, PLD 1992 SC 559, We have already referred to this in
‘an early chapter. The point to be made here is that enactment by
parliament will satisfy the outward rule of recognition, the external
statement, What needs to be done for the internal point of view may
be stated in the words of Justice Shafiur Rahman:

‘The ascertainment of the absolute principles of Islamic Law
with regard to political power, its distribution and delegation
‘and financial institutions is itself a matter requiring detailed
study, thorough research and meaningful debate before acquir-
ing concrete shape #0 as to be adopted as a test of repugnancy
of the Constitutional provisions. It cannot summarily be done.
Such an exercise can more appropriately be undertaken under
the control and supervision of the legislature and the expert
bodies like the Islamic Ideology Council and Islamic Research
Institute*

‘The learned Justice was referring here to the application of the re-
pugnancy test to constitutional provisions and to the pre-enactment

“PLD 1992, SC 634,

300 The Modes of Ijtihad

stage. We would like to say, however, that the ascertainment of the
absolute principles of the shari’ah with respect to the entire law,
whether it has been amended after the application of the repugnancy
test or whether it has been retained after passing the repugnancy
test, is immense, because this alone will help the insiders, judges,
lawyers, clients, citizens, to internalize the law, and be able to say
with confidence: “This is the las 7

To explain the post-enactment stage, we may look at the crim-
inal law as enforced in Pakistan. The Hudid Ordinances have been
in operation for some time. The Qisds and Diyat law is also in op-
eration now, These laws can be, and are, explained in the light of
the principles of Islamic law. There is, however, no exposition of the
theory of crimes as yet, a theory that organizes the various principles
and doctrines of the criminal law into a unified whole. There is need
for such a theory so that the judges and lawyers understand how the
principles of Islamic law in this area are different from those in West:
ern law or in the English common law. In addition to this, the bulk
of the penal code has been retained after passing the repugnancy
test; the same can be said about the criminal procedure code as well
‘as other related laws. What are the principles that govern this law,
which has been retained in its original form? In case of ambiguity,
what principles would the court use to interpret and apply this law?
‘The obvious answer would be that they will use the same principles
that they have been using up to now, that is, the principles found
in the English common law. According to Jerome Hall, “(T]he prin.
ciples of criminal law include many of the ultimate ideas of Western
civilization."” There can be no doubt that it is imperative that we
substitute the principles of our own civilization for these, if we have
to internalize this law and add to its efficacy.

Using the principles of the Islamic criminal law is the burden of
the superior courts of Pakistan, but the courts have to be assisted in
this task, The Islamic Research Institute and other institutes of legal
learning must undertake this task in great earnestness and provide
the courts with a body of principles and doctrines that will govern the
criminal law, substantive and procedural, in the future, The same can
be said about other areas of the law, in fact, the entire legal system.

This, however, is easier said than done. It is a complex task and
needs to be handled with care. The first thing that needs to be done
is to adopt a uniform methodology. This methodology must enable

"Jerome Hall, Generel Principles of Criminal Low, vi

Tusories oF Istamic Law 301

‘the jurists engaged in this task to search for and derive the general
principles of Islamic law with ease. Methodologies change over time,
Dut as a starting point the methodology proposed by al-Ghazali can
be followed, This methodology requires that the general principles
must be verified and checked against the purposes of the shari‘ah.
The purposes of the shari‘ah are not law in themselves; they serve as
the criteria for confirming the authenticity of the general principles
employed by the jurist, whether these principles are stated in the
texts of the Qur'an or the Sunnah or have been derived from them
by the jurist. In some ways, this entire book has been devoted to the
explanation of this methodology.

Appendix I sez
The Use of Hiyal in Islamic Law
(Referred to in Chapter 8)

According to Schacht, Muslim jurists attempted to bridge the
gap between theory and practice through casuistical methods. The
most significant of these were the hiyal.' He also mentions Malik's
concept of ‘amal, shurit and furdig among various devices used for
bridging the gap between theory and practice, but it is obvious that
he does not consider all of these as casuistry. His major emphasis is
on hiyal. It was Ignaz Goldziher, in fact, who first pointed out the
existence of casuistry through hiyal.? For him it was not a question of
bridging the gap between theory and practice. He considered hiyal as
“tricks” emerging from the “soul-destroying pedantry of the jurists”
that were an affront to the moral and spiritual order,? and which

form “only part of the customary commercial law which developed,
beside the ideal law of strict theory, in the Islamic countries of the
Middle Ages."*

Schacht is the only person in modern times who undertook exten-
tive scholarly work on the subject of hiyal. He edited three books.”
‘The books are by al-Shaybiini, al-Khassaf, and Qazwini. Two of these
were from the Hanafi school and one was compiled by a Shafi" jurist
of the fifth century Hijrah. Besides editing these books, he also wrote
some articles on the subject. Hiyal are not included in the handbooks
‘of the jurists. The only exception is al-Sarakhsi, the author of al-
Mabadt. Schacht is of the opinion that hiyal receive special separate
treatment. This appears to be correct, but only for the Hanafi school.

"See Schacht, Introduction, 205, 210.

7Goldsiher, Islamic Law and Theology, 62.

"Ibid. 66.

“Thid. 66.

"Thad. 65.

“Schacht, Introduction, 210 (Cj. “The hiyal, which are not confined to com-
mercial law but cover other subject-matters as well....” Ibid. 78, Unfortunately,
uch contradictory statements are widespread in the works of Joseph Schacht)

"See Beitroge sur semitischen Philologie und Linguistik, vole. 4, 5, & 6

304 Arrenpix |

In any case, this does not mean that the Aiyal are not an integral
part of figh.

Hiyal literature appears to have originated with the Hanafites,
with Aba Ydsuf and al-Shaybani composing treatises. The other
schools, as well as the traditionists, were initially opposed to the
hiyal® Slowly, however, the other schools started accepting the hiyal,
Al-Qaawini, a Shafi'T jurist, composed his treatise with caution, di-
Viding the hiyal into mahzir, makruh, and mubah, with the last cate-
gory forming a major part of his work. The Hanbalites also declared
a number of hiyal to be legal.” Al-Shatibl, a MAliki jurist, also distin-
guished the permitted hiyal from the prohibited on the basis of the
purposes of law." These schools declared the hiyal to be legal and
caine to accept them for a definite legal purpose, which was not the
bridging of the gap between theory and practice, though every law
and every rule does add something to practice.

A careful examination of the hiyal literature reveals their close
relationship with shurdf (conveyances). They are merely procedural
devices advising people to be careful in making contracts and framing
Jogal statements. Their purpose is not to evade the law, but to avold
clashing with it due to carelessness, For example, if a man wants
to threaten his wife with divorce, but does not actually want to
divorce her; his statement, “I will divorce you if you do this,” will take
effect according to Hanafi law if the woman is adventurous enough
to commit that act, and she will stand divorced, The hilah for the
man is to add “God willing” at the end of his statement." The use
of this formula can be traced to traditions from the Prophet related
to other types of oaths. There are many hiyal that belong to this
category. Of course, there are some that are highly complex,

‘The hiyal are not “tricks,” but precautionary devices, This is ree-
‘ognized by Schacht when he says: “The concept of ‘precaution’ dom:
inates the literature of Aiyal and shurdt.""? ‘This kind of precaution
is there for every lawyer today who is about to draw up a contract,
will, or some other deed for his client, The hiyal are a counterpart

"Schacht, Introduction, 81; Coulson, History, 140-41

"ALShatibt, o-Muwafagat, 2:378-91, 4: 201,

“Thin happens to be the first hah is Shaybast, Kiteb of-MaAgriy fv ol-fliyal,
(Schacht, ed.) 1, printed in Bestrage sur semitischen Philologie und Linguistik,
Mil, 1968,

"Schacht, Introduction, 210

Theories of Islamic Law 305

of shurtif literature. They have been given separate treatment by the
jurists not only because of their importance, but due to the fact that
most of the procedural literature has been given separate treatment.
Incidentally, this too is a fact that Schacht does not fail to recognize.
He says:

‘The works on Aiyel and the works on sharif belong to a well
defined branch of Hanafi legal literature, together with works
on wakf, on legacies, on the minutes (mahder) and written
judgments (sijill) of the kadis and the duties of the #édi (adab
‘al-bédi) im general, and, at a certain distance, on maintenance
All these subjects are of importance for the application of Is-
Jamie law in practice, and they tend to appear in combination
‘among the works of series of highly esteemed Hanafi suthors
‘over several centuries"?

Finally, the hiyal are not legal fictions in the sense of the Roman
law or the English common law. This fact has been recognized by
Vesey-Fitagerald and Coulson.'*

It would be reasonable to conclude that the hiyal belong to a
large body of procedural law. They were meant as guidelines for
lawyers drawing up contracts or advising individuals in matters of
the personal law as well as commercial law, and it is incorrect to
equate the hiyal with legal fictions that are intended to counter the
rigidity of the law. They had nothing to do with the bridging of the
gap between theory and practice nor do they indicate the rigidity of
the law. As for Goldziher’s views about “soul-destroying pedantry”
and “quibbling legalism,” perhaps, he would have said the same thing
about many hair-splitting lawyers of the modern age, if they were
given authority over matters of faith.

“Schacht, Introduction, 83.
“Vesey-Fittgerald, “Nature and sources of the Shari'ah,” Law in the Middle
ost, 107; Coulson, History, 140.

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Glossary

adab al-gadt: The duties of, and procedure followed by, the judge
(aads).
‘Adilah: Just, See also ‘adl.

adillah ijmaliyah: The general evidences for the law that contain
within them the specific evidences. The Qur'an, for example, is a
general evidence, while a verse of the Qur’dn pointing to a hukm
is a specific evidence or the dalif tafsiti.

adillah tafyiltyah: Specific evidence. See also adillah ijmaliyah.
I: Justice. A morally upright witness.

‘afw: Pardon. Pardon in the law of retaliation (isd), that is, the
lex talionis.

ahkam: Plural of hukm (rule).
ahttyah: Legal capacity.
ahityat al-ada’: Legal capacity for execution.

ahliyat al-wujao: Legal capacity for the acquisition of rights and
obligations,

‘amalt: Pertaining to conduct,

a‘mal: Plural of “amal (conduct).

‘amal: Conduct. The principle used by Malik ibn Anas to refer to
the practice of the people (jurists) of Medina.

‘amaltyah: Pertaining to conduct or acts.

amanah: Trust, Bailment.

‘amm: General. A general word or textual evidence, as distinguished
from a particular word (kids).

‘amp: Command.

‘aga"id: Belief. Tenets of faith.

‘agilah: A group of persons who pay the bloodwit (diyah) on behalf
of the offender.

‘agl: Reason. The fourth interest secured by the sharf'ah and recog-
nized as a purpose of the law.

a4 Guossany

‘ariyah: The sale of fresh dates on trees in return for dry dates—
permitted as an exception to the rules of riba (usury).

arkan: The elements or essential ingredients of an act, without which
the act is not legally valid.

ashbah: Similar cases or attributes.

ashbah wa nazar: Similarities (in undistinguished cases) and
precedents.

agl: Origin; root; foundation. Source of law. The established case
that forms the basis of the extension of the hukm in giyds (anal-
ogy). A principle of law. The principal amount in a debt.

asl mu‘ayyan: A text that supports a general principle, Such a
principle is called mundsib muld'im.

‘atah: Idiocy. A natural defect for the capacity of execution (ahliyat
al-ada”).

thar: Traditions reported from the Companions of the Prophet
(God's peace and blessings be upon him).

‘ayn: The corpus or substance of a thing. A thing present as dis-
tinguished from one that is absent at the time of the contract. In
Hanafi terminology, it is a thing that is to be determined through
weight or measure during a transaction of sale.

‘yan: Plural of ‘ayn.

‘aztmah: A rule initially applied as a comprehensive general princi-
ple to which exceptions or provisos are provided by the law later.
The exception is called rukhgah.

baligh: A person who has attained puberty. Puberty is the outward
sign of majority and discretion. In the absence of puberty, jurists
determine different ages for the presumption of puberty.

bagil: Nullity; void.

bay‘: A comprehensive term that applies to sale as well as many
other transactions that are not strictly referred to as sales in pos-
itive law.

bay ‘ah: The oath of allegiance,

bayan: Explanation. Technically, the explanation (bayén) refers to
the elaboration of meanings in the texts. An explanation for a text

Theories of Islamic Law 315

of the Qur’én that has not been elaborated is to be sought first in
the Sunnah and then through other sources like usage etc.

bayt al-mal: Treasury.

bid‘ah: Innovation.

bukhi: Nigardliness.

buldgh al-nikah: The age of puberty or the age of eligibility for
marriage.

dalalat: The different ways in which the meanings of texts and their
implications are understood.

dalalat al-lafz: The implication of the text.

dalalat al-nags: The implication of an explicit text.

daltt: Evidence. In a literal sense the term means guide, but in tech-
nical terms it refers to an evidence that points to or indicates a
rule (hukm).

daltt al-khitab: The implication of the text. It is used by some to
mean the mafhtim mukhdlafah or the counter indication of the text,

daltt ijmalt: See adillah ijmaliyah.

dali! kullt: The same as dalit ijmali, It also refers to a general prin-
ciple,

dali! tafgttt: See adillah ijméliyah.

dar al-harb: Enemy territory not under the jurisdiction of a Muslim
state.

dar al-Islam: The ares under the juridiction of the Muslim state.

dardrah: Necessity. A principle used for permitting forbidden things
in case of duress or extreme hardship.

dardrat: See dariri.

dardrf: Necessity. The term has particular significance for the pur-
poses of law, the preservation of which is a necessity.

da‘wah: Invitation.

dint: Pertaining to din (religion).

dhimmah: The equivalent of legal personality in positive law, A
receptacle for the capacity for acquisition.

diyah: Compensation for injuries of loss of life; bloodwit.

316 Guossany

diyat: Plural of diyah

dunyawf: Pertaining to the temporal.

duyan al-marad: The debts that become due during death- illness.
They restrict the power of disposal of the person suffering from
death-illness,

‘fasid: Vitiated; irregular. It is also used in the sense of voidable in
the positive law. A contract, hoever, is voidable at the option of
the parties, while the fasid contract can become valid only if the
offending condition is removed.

fadl: Excess. The term is used for riba, which is excess in the ex-
change of two counter-values, whether determined through weight
or measure or realized through delay in the delivery of one of the
counter-values,

falasifah: The philosophers. :

fagth: Jurist. -

fara'id: The rights in inheritance,

fard: Obligatory. A-term used by the Hanafis to distinguish an obli-
gation established through a definitive evidence as against one that
in established through a probable evidence, which is referred to ax
wayib.

Figh: A knowledge of shart'ah, that is, the law.

al-figh al-ayghar: The minor figh. A term applied by Abi Hanifah
to refer to a knowledge of the law excluding the figh of tenets of
faith.

al-figh al-akbar: The knowledge of law as well as the tenets of faith,

fugaha’: Plural of fagih (jurist).

furd‘: The individual cases of the law as distinguished from the ugull
or sources.

Surdg: The art of distinguishing apparently similar cases.

ghartb: A principle or rale that is alien to the generally acknowl-
edged propositions of the law.

ghayr shar‘ ahkam: Rules that do not pertain to the law.

hadd: Limit; boundary. A fixed penalty prescribed as a right of
Allah. Some jurists have used the term to indicate the larger doc-

Theories of Islamic Law 37

trine of hadd that incorporates all the rights of Allah. Together,
these form the boundary conditions of the entire legal system
within the framework of which the rest of the law has to be devel-
oped.

hadith: Saying. The written record of the Sunnah, One hadith may
contain more than one Sunnah.

hajat: Needs; necessities. Used for the secondary purposes of the
law that are complementary to the five primary purposes or the
daririyat.

haji: See hajat.
hajrr Interdiction.

Hakim: The Lawgiver. The Lawgiver in Islamic law is Allah
Almighty, In the discipline of updl, the Hakim is considered to
be the first rukn (element) of the hukm shart.

hagtgt ‘agit: The concrete norms acknowledged by the shar‘. The
term was used by al-Ghazall,

hagg Allah: The right of Allah.

hagg al-‘abds Right of the individual.

agg al-saltanah: The right of the state as distinct from the right
of Allah.

hagg al-sultan: See hagg al-saltanah.

haram: Prohibited.

awl: One year. The prescribed period after which payment of zakéh
becomes due.

hayd: Menstruation.

hazl: Jest, Refers to cases where utterances made in jest may have
legal effects. The examples are marriage, divorce, and manumis-
sion.

hibah: Gift.

hikmah: Wisdom. The purpose or spirit of the law. There is a dif-
ference of opinion among jurists whether the hikmah can be used
as an underlying cause to extend the hukm.

hifz: Preservation. The word was used by al-Ghazili with reference
to the purposes of law. :

318 Guossany

hilah: See hiyal.

hiyal: Plural of hilah. A legal device for evading the incidence of the
strict law. Also referred to as legal fictions. Legal fictions, however,
have a different function to perform in positive law.

hirz: The place of safe-custody for property with reference to the
offense of theft. Possession of property for purposes of hirz may be
actual of constructive.

hisbah: Accountability; reckoning. The institution of the ombuds-
man.

hudad: Plural of hadd.

hujjah: Proof; demonstrative proof. An evidence in the sources that
forms the basis of persuasive legal reasoning.

hukm: Rule; injunction; prescription. The word hukm has a wider
meaning than that implied by most of the words of English deemed
its equivalent, Technically, it means a communication from Allah,
the Exalted, related to the acts of the subjects through a demand
ot option, or through a declaration. According to this definition,
the word hukm includes obligation-creating laws, declaratory laws,
and even those that may be based upon positive decrees or on
custom. Thus, the meaning is much wider than the “command of
the sovereign” contemplated by John Austin for positive law.

hukm shar‘f: See hukm. The term hukm shar't is used to apply to
its four elements: the Lawgiver (Hakim); the law or hukm itself,
the mahkdm fih or the act; and the subject or mahkim ‘alayh.

hukm takltft: The obligation-creating rule, The primary rule of the
legal system.

hukrn wad't: The declaratory hukm. A secondary rule of the aystem
that facilitate the operation of the primary rules,

Iuqdg al-‘ibad: The plural of the right of the individual. In the
collective sense, it may be considered as the right of the community
and would then be the same thing as the right of the state.

huan: Good. In Islamic law, the term is used with reference to reason
and natural law.

ibadah: Worship.
‘ibadat: Plural of ‘ibddah.

Theories of Islamic Law 319

‘ibqd’: Preservation. The term was used by al-Ghavali to indicate the
positive or affirmative aspect of the purposes of law as compared
to the defensive or protective. For example, in the case of the first
Interest of Din, prayer has to be established from the affirmative
aspect, while protection requires the defense of Din through jihdd.

idfirae: Duress; necessity.

“iffah: Chastity.

ighma’: Fainting.

ihram: The ritual state of ihrém required for the ‘wmrah or hajj. It
also refers to the intention to perform the ‘umrah or hajj, which is
part of the total ritual state.

646; Obligation-creating command.

ijarah: Hire; rent.

ima‘: Consensus of opinion. In the parlance of the jurists it is the
agreement upon a hukm shar't by the mujtahids of a determined
period. This defintion would exclude the employment of this prin-
ciple by a political institution, unless it is composed of mujtahids,

itihad: The effort of the jurist to derive the law on an issue by
expending all the available means of interpretation at his disposal
and by taking into account all the legal proofs related to the issue,

ikhalah: Reasoned conviction. A method used by the Shafi’ jurists
for extending the law on the basis of a highly persuasive and con-
vincing norm. The method is rejected by other schools.

ibhtilaf al-fuqaha’: The differences of the jurists. This title is used
for the discipline that may be referred to as applied upil, as dis-
tinguished from ugil al-figh, which is theoretical and highlights
the assumptions of the jurists or their schools with respect to the
sources of law or the rules of interpretation.

14’: A pronouncement by the husband of abstention from sex with
his wife. It leads to divorce if observed for a determined period.
Sillahe The underlying legal cause of a hukm, its ratio decidendi, on
the basis of which the accompanying hukm is extended to other

cases.

imam; Leader.
insdniyah: The attribute of being a human. It is considered to be
the basis for the assignement of personality, which in turn enables

320 GLossaRyY

a person to have legal capacity. A fictitious person may not be
assigned personality on the basis of this rule.

igdmat al-huddd: Establishing the hudid. It is deemed to be the
primary duty of the ruler. Thus, the ruler must have the qualifi-
cations required of a witness in huddd cases.

ishtirak: Equivocality.

iandd: The chain of transmission of a tradition.

ingat: The extinction of a right.

istidlal mursal: Legal reasoning that is based on a principle freed
from the hold of individual texts, that is, it is let go into the realm
‘of the purposes of the law.

istibsan: The principle according to which the law is based upon
‘a general principle of the law in preference to a strict analogy
pertaining to the issue. The principle is used by the Hanafis as well
as the Malikis. This method of interpretation may be employed for
various reasons including hardship.

istighab: A principle within the Shafi system, which in general
terms means: the status quo shall be maintained. In a more tech-
nical sense, it means that the original rule governing an issue shall
remain operative. In such a case, the primary rule assigned to all
issues id that of permissibility. Sex activity, however, does not fall
within such original permission.

istiglah: As distinguished from the broader principle of maslahah,
it is a principle that permits a more flexible type of analogy as
compared to giyds.

istigra’: Induction.

iMtikaf: Seclusion in a mosque for worship.

itlaf: Destruction; damage; injury to limbs of the human body.

# Manumission; emancipation.

jani: The fetus. Strictly speaking it is the stage of the fetus when
the woman is ‘quick with child."

jihad: Struggle in the way of Allah.

jina; Genus.

Jizyah: Tax imposed on non-Muslim citizens of a Muslim state.
‘These citizens are not liable for 2akdh.

Theories of Islamic Law 321

jumhar: Majority (of the jurists).

jundn: Insanity.

juxaf: Heap, Grain or goods sold in heaps by estimate.

jus": An individual category within a genus. It refers to a specific
evidence within a general evidence.

adi: See gadi.

kaffarah: Plural kaffardt. Expiation.

khagg: Particular; specific; particular word.

khabar wahid: It is a report from the Prophet that does not reach

the status of tawdtur, or of mashhiir according to the Hanafis,
that is, there are one or two narrators in its chain in the first

among the Companions, but it reaches the status of mutawatir in
the generation of the Tébi‘tin,

khaltfah: Caliph.

khamr: Wine.

khardjr Revenue derived from land.

bhilaf: Juristic differences.

bhilafah: The Caliphate.

bhitab: Address; communication.

khifab jina't: The communication forming the basis of criminal
ability.

khiyalt igna’ Probable norms.

khiyar: Option.

khums: The fifth of spoils.

kullt; General; general evidence. See just.

ulltyat al-shari‘ah: The definitive general principles of the
shari'ah.

mal: Wealth.
mani‘; Obstacle.
madarrah: Harm; injury.

322 GLossaRy

mafhim al-mukhdlafah: The implication contrary to the actual
meaning of a text.

mahdar: Record of findings (by the judge).

mahkdm ‘alayh: The subject.

mahkdm bih: The act of the subject to which the hukm is related.
mahkdm fih: See mahkim bik.

mahsir: Prohibited.

majnén: Insane.

makrah: Reprehensible; abominable; disapproved.

makrah karahat al-tahrim: Disapproval that is akin to pohibi-
tion.

makrah karahat al-tanzth: Disapproval that is closer to permis-
sibility.

mand: The support or place of suspension of another thing. The
underlying cause on which the hukrn is suspended.

manda; Recommended.

manfa‘ah: Utility.

maqagid: Purposes.

magagid al-sharf‘ah; The purposes of the shari'ah, whose preser-
vation and protection amounts to the securing of an interest
(maglahah).

marad: Mines.

marad al-mawt: Death-illness.

marfq: The sick subject.

mayalih: Interests preserved and protected by the sha

magdar: Source.

maglahah mursalah: An interest that is not supported by an in-
diviual text, but is upheld by the texts considered collectively.

mashaggah: Hardship.

maglahah: The principle that the sharfch has determined goals or

purposes and the securing of these purposes is an acknowledged
interest (maslahah).

Theories of Islamic Law 323

ma‘tdh: Idiot.

mazdlim: Violation of rights.

mazinnah: Location. The outward indication of an actual cause of a
hukm, like puberty for maturity and discretion, or sleep for the‘ac-
tual acquisition of impurities, or penetration for actual ejaculation
in the offense of unlawful sexual intercourse.

mithl: Similar; substitute; fungible.

mu‘dmalat: Transactions.

mu 'aththir: Effective; the effective cause,

mu ‘aththir mundsib: The effective cause that is also compatible
with the purposes and general propositions of the law.

mubah: Permissible,

mubdya‘ah: The oath of allegiance. See bay‘ah.

muddrabah: Partnership where the working partn
its, but not the loss,

madhin: A permitting evidence.

muhgan: Married; chaste; free. The term is generally used in the
context of the offense of unlawful sexual intercourse where it is
applied to mean a married or once married person.

muhtamal: Probable meaning.

mujmal: The word whose meaning has not been elaborated by the
text, The elaboration requires recourse to other texts.

The independent jurist, who is qualified to derive the law
and is under an obligation to follow his own opinion,

mujtahid fi al-madhhab: The jurist who is independent with re-
spect to the opinion he derives, but follows the founder of a school
with respect to the principles of interpretation. In other words, he
observes tagiid fi al-ugtil, but not taglid ff al-furd'.

mujtahad fih: A matter that is subject to interpretation,

‘The absolute jurist—usually the founder of a

ws his own opinion even with respect to the rules
of interpretation.

mukallaf: The subject.

shares the prof-

324 GLossany

mukhil: A persuasive or convincing attribute derived through
skhalah.

muktasabah: Derived.

mula'im: Compatible.

mul&'amah: Compatibility.

mulghd: A principle rejected by the law.

mundsabah: The conformity between an attribute and the purposes
‘and the general propositions of the law.

mundsib; An attribute conforming with the purposes of law.

mundsib gharfb: An attribute that conforms with the purposes of
the law, yet it is not acknowledged by the law.

mundsib muld’im: A principle that conforms with the purposes of
the law and is also supported by an individual text.

mundsib mu’aththir: A rule that is compatibe with the purposes
of the law and its underlying cause is indicated explicitly by the
texts or by direct implication.

mundsib muld'im: A principle for which the underlying cause has
been derived by the jurists from a text, and the principle also
conforms with the purposes of the law.

mugallid: One who follows the opinion of another.

mursal: Released; let go. A rule in which the hold of individual texts
is released.

mursal gharib; A principle that is not supported by an individual
text nor is it compatible with the purposes of law.

mursal mula'im: A principle that is not supported by an individual
text, but it is supported by the purposes and general propositions
of the law

mushrik: Polytheist.
mustanbitah: Derived.

nays: Text; definitive implication of the text.
nazart: Theoretical.

nabidh: Mead of dates.

nadb: Recommended.

Theories of Islamic Law 325

nafl: Supererogatory.

nafs: Self; life. An interest secured by the shari‘ah as a purpose of
the law.

nahy: Proscription.

naskh: Abrogation.

nasl: Lineage; progeny.

nifas: Post-natal state of a woman.

niga: The minimum scale provided for an area of the law. For
aakéh and theft, for example, it is a minimum amount of wealth
that imposes liability, while in evidence it is the the nisdb of one
man and two women who render testimony.

nisydn: Forgetfullness.

qada': The judicial office. Also used for delayed performance of an
act.

addi Judge.

q4'idah kulltyah: A general principle whose hukm is uniformly ap
plicable to each of its categories,

g8'idah ugGlfyah: A principle of interpretation used in the disci-
pline of upd! al-figh.

¢angn: Law made by the Ottoman rulers.

qadhf: False accusation of unlawful sexual intercourse. The liability
can arise indirectly when a person is accused of being illegitimate
through an abuse.

gard: Loan.

gard hasan: A gracious loan in which interest is not charged nor is
a period of repayment fixed.

gat't Definitive.

gatl ‘amd: Wilful homicide; murder.

qawa‘id al-figh: General principles derived from a number of cases
in figh

qawa'id fighiyah: See gawé'id ol-figh.

qawa‘id ug@liyah: Principles employed for the interpretation of
texts.

326. Guoss

gawanin ustlfyah: See gawa'id usuliyah.
Gigdg: Retaliation for loss of life or limb; ler talionis,

divas: Analogy; syllogism. The extension of the hukm of a spe
case established in the texts to a new case awaiting decisior
the basis of a common underlying cause.

giyas fv matna al-agl: Same as giyas al-ma'nd.
giyds al-‘illah: The regular form of analogy in which an underly

cause is errployed for the extension of the hukm, as distinguis
from qiyds al-ma‘nd or even giyds al-shabah

qiyds al-ma‘na: The extension of the hukm from a lower-ot
meaning to a case falling under the higher-order meaning ide
fied through the implication of the text, If the text of the Qui
says that one should not say even ‘fie’ to parents, then, taking’
as the lower-arder meaning we extend the hukm to more griev
cases of abuse. This form is considered the strongest type of ai
ogy. According to the Hanafis, this is not analogy, but the im
ation of the text—dalalat al-nags

giyds al-shabah: Analogy on the basis of attributes that can
qualify as underlying causes in the strict form of giyds al-"W
A form of analogy that is more flexible than giyds. It is used
judges in the positive law systems.

qubh; Evil. See husn, Pertains to questions of natural law and reas
that is, whether reason can discover good or evil independently
the shari'ah

7 Personal opinion; judge- made law. A term used for the met!
of the Hanafis by the Abt al-Hadith

rajm: Stoning to death for the offense of unlawful sexual intercon
by a married or once-married person.

rashid: One who possesses rushd—discretion.

riba: Usury; interest. The unjustified or uncompensated excess
the exhange of two counter-values in a transaction of excha
when the excess is revealed either through weight or measure
through benefits arising trom delayed delivery.

rigg: Slavery,
rujd‘: Retraction of confession, divorce, and the like.
rukhgah: Exemption, See ‘azimah.

Theories of Islamic Law 327

rukn: Element; ingredient. An essential element of an act without
which the act cannot be said to be valid.

rushd: Discretion; maturity.
94% A mesure of volume.

sabab: Cause.

tabf: Minor who has not reached the age of puberty.

4066 ghayr mumayyiz: Minor under the age of seven or one who
cannot discriminate between good and bad.

sabi mumayyiz: The discriminating minor. Such a minor ‘nay be
allowed to enter into beneficial transactions by his guardian.

gadagat: Charity.
sadagah? Charity; zakah
gadagat al-fifr: The poor-due payable before the ‘Id al-fitr.

sadd al-dhart‘ah: The plugging of lawful means to an unlawfal
end.

safoh: Prodigality.

safth: Prodigal.

sabth: Sound; valid

‘imah: Freely pasturing animals

salam: Advance payment for delivery of future goods
saltanahr State.

samawiyah: Natural; pertaining to the heavens.
sanad: The evidence relied upon. The sanad of ijma’
sarigah: Thelt.

shabah: Similarity.

shahéadat al-agl: The support of a specific text for a rule or general
shar‘: The law.

shart: Legal.

shart ahkadm: The body of rules that collectively form the content
of the shari'ch.

328. Gvossar)

shari‘ah: Islamic law.

sharik: Partner.

sharikah: Partnership.

shar‘fyah: Legal.

shart: Condition,

shawkah: Power. The doctirne of power recognized by al-Ghazali in
Islamic political theory as means for guaging divergent opinions,

shubhah: Doubt,

shubhah fr al-dalil: The doubt in the mind of the subject as to the
controlling evidence of the law.

shubhat al-milk: The benefit of doubt given to the accused when
there is a likelihood of confusion about his valid ownership of the
subject-matter of the offense.

shurb: Drinking.
shurb al-khamr: The offense of drinking wine (Kharnr).

shurat: Plural of shart: condition. The art of conveyancing. ‘The
books of al-Tabawi are well known for the discipline of shurdt.

sighah: Form; proposal.
sibhoh: Validity,

gighar: Minority.

sijill: Record of depositions.
siyar: The laws of war.

siydsah ‘Adilah: Just administration—when it conforms with the
genreral principles of the shari‘ah.

siydsah shar‘tyah: The administration of justice by the state be
yond the explicit law of the shari’ah.

iwasah zalimah: Tyrannical administration of justice, that is,
when it is not in accordance with the general principles of the
shari'ah.

sultan: Ruler of a sultanate.

Sunnah: The precedents laid down by the Prophet to be followed as
binding law. These ray be through statements, acts, or approvals.

ta‘addé: Tort; negligent conduct; transgression,

Theories of Islamic Law 329

fabagat: The grades of the jurists.

ta’dib: The act of disciplining akin to ta‘sir,

tafetr: Commentary; interpretation.

tahgig al-mandt: The verification of the attributes of an established
case in a new case offered for examination. This process does not
need a jurist. For example, a beverage may be examined to see if
it Is an intoxicant. This may need a chemist or pharmacist not a
jurist.

tahrém: Prohibition.

tahaindt: The thrid category of puposes that are complementary to
the first two categories.

tahsini: A purpose of the law placed in the third category where it
acts as a complementary interest.

takhyfr: Picking and choosing of opinions. The choice given to the
wife with respect to divorce.

takltf: Obligation.

takleftr Obligation-creating rule

talftq: The construction of an opinion through bits and pieces ex-
tracted from various opinions.

tamdtk: The transfer of the right to divorce to the wife.

tam: Dates.

tagltd: Following the opinion of another without questioning the
dalit on which reliance is placed.

targhib: Inducement.

tarjth: Preference of one evidence over the other.

tagarrufat: The general propositions of the law. This is the way
al-Ghazall has used this term.

tawéi Authentic transmission of reports and texts. A text or
tradition reported by so many people in the first generation that
its authenticity cannot be doubted.

tawaseu‘: Facitlity,
tawaseu‘ wa taysir: Facility and ease.
tawkil: Delegation of powers.

330 ___ Guossar}

taysir: Ease.

4a‘zir: Discretionary penalties. Some jurists consider ta‘zir penalties
to apply to genus of those crimes for which hadd penalties have
‘been prescribed, but where hadd cannot be applied for want of
required evidence or fulfillment of conditions. Jurists in the present
times give a wider scope to ta‘zir and consider it to apply to al
punishments other than hudtd and gisés.

thawdb: Reward for the Hereafter.
‘ulama’: Scholars; jurists.

‘lu al-amr: Those in authority.
ummah: The Muslim nation.
‘uma: Visit to Mecca.

“urf: Custom; usage. The usage during the period of the Prophet,
which helps in discovering the original intent of the lawgiver,

‘uahr: Ten percent tax on produce of unirrigated land.

upd al-figh: Legal theory; systems of interpretation; sources of Is-
lamic law.

wpa! kulltyah: General principles.
‘wel: Plural of al. Principles.

wedlts: Legal specialist dealing with the principles of interpretation,
wajib: Obligatory.

wad"t: Declaratory.

wagf: Attribute; potential underlying cause.

wagiyah: Bequest.

waht: Revelation,

wakalah: Agency.

wakdlah ‘dmmah: General attorney.

wakil: Agent; attorney.

walt: Guardian.

wagf: Trust; endowment.

wildydt: The jurisdiction of the ruler.

wilayah: Guardianship; authority.

Theories of Islamic Law 331

wujab: Obligation.

yad: Hand; arm; forearm.
yamin: Oath.

zabib: Raisins,

zakah: The compulsory levy on wealth for the poor imposed as a
right of Allah.

Fibar: Injurious assimilation (of wife to mother), that is, refraining
from sexual intercourse with wife after saying to her: “you are for
me like the back of my mother.”

zind: Unlawful sexual intercourse including adultery.
sahir: The apparent or literal meaning.

#alimah: Tyrannical.

zannt: Probable

Index

Abbott, Nabia, 274, 276

AbG Hanifah, 21, 83, 84, 94, 147,

154, 155, 159, 168, 186, 190
ab-atbor, 22

ted general principles, 223,
caseiatey, 149

contribution of, 148
Abd Sa’id al-Kbudri, 182
AbG Yisuf, 154, 177, 186, 190
Aba Zahrab, 147, 255
act

nature of, 72, 73
adiliah—see dalil, 23
Afghdsi, Ab al-Wafa’, 60, 154
Aftab Hussain, CJ., 110

Abl al-Hadith, 148-150, 161, 172,
176-178, 182, 187
literal methods, 171
movement of, 232
Abi al-Ra'y, 148, 150, 177

‘Ase, 7 15, $3, 113,

saapol mrt; 161
analogy
new theory, 224

aL Shas view, 182, 184
the gharid
types of, 203, 212
method,

‘AL Bor, Aba a-Busnya, 198
my mat

‘theft from, 119, 122
AL-Bazdawi, 190
Bentham, Jeremy, 42

igh, 87, 89

eapacity—see legal capacity, 75

334 Inpex
civil law ae ?
Eoropeas, S
classical theory skrah, 100
‘effectiveness of, 153 insanity, 92
classification junan, 92
iby Hamad, 66 fnateral causes, 9)
‘criminal law, 210 safah, 99 4
five-fold, ST development of Islamic law
duke taklify, 66 after alShafi'l, 152
ab, 64 and pew theory, 228
‘arahah, 64, 66 gadis, 138
nadb, 64 ALShafit's contribution, 153
purpone of, 68 spirit of cooperation, 16
ab-Sarakha’s, 59 thimmah, 75, 78
tohrim, 64 distributive justice
codification, 295 principles of, 264
coercion, 100 divorce, 84

common law, 5, 151, 160
common theory, 5, 11, 274, 277
and Muslin scholars, 10
and the Went, 10
of interpretation, 9
Constitution
Article 2A, 39
Coulson, N. J., 4, 111, 160, 175, 305
Council of Islamic Ideology, 295, 299
ccrimminal law
‘bass of clasmfication, 120
custom (‘wrf), 132

Ab-Dabiisi, 133, 156, 182, 196, 201,
283
aenetal principles, 172
dalilat ol-nass, 184
dalit
mall, 23, 29
tafeite, 23, 29
darirét, 218
Dawid al-Zihiel, 185
deatheillness, 93
affected rights, 94
bond of affection, 96
transactions during, 94
defective capacity
acquired causes, 87
adminsion, 102

confession, 102
duress, 100
effect of intaxication, 97

delegation of rights of, #1
doctrines of hadd, 114, 277
right of Allab, 125
duress, 100
Dworkin, Ronald M,, 2, 7, 30, 162

early jurints

‘methodology of, 14, 159
‘economic aystem, 262
Eisenberg, Melvin A., 162, 163, 195,

219, 228

elements

Haken, 37

huken, 35

mahkira ‘aloyh, 73, 74

smahkara bid, 71

smahkam fh, 60
‘extension of law

and new theory, 229

fainting, 93
Jagih, 25

and mujtahid, 26
AL-Parabi, 259
fictitious person

‘and flexible sphere, 78
fih

acquired knowledge, 25

and fogth, 25

and balm, 22

as ‘ibm, 21

and ‘lm ol-kolam, 24

‘and Inlamization of knowledge, 23

Knowledge of mugallid, 25

echnical meaning, 22
fixed sphere, 16, 53, 112, 114

‘and general principles, 116

fonctions of, 116

moral norms, 118

purposes of law, 118

right of Allah, 115

scope of ptihad, 124
flexible sphere, 16, 53, 112, 114

scope of thelr work, 52, 59
Chom

gaanl poset 118
and anal jurists, 172

Al-Juwaynt's proposal, 233,

335

ab Shait's view, 169
‘stated im texts, 283
used by Aba Hantfah, 223
general propositions, 201, 218, 286
general theory
main featares, 277
origin of wet, 277
gharib, 211
example of, 226
AL-Ghazali, 10, 11, 41, 42, 44, 68,
118, 131, 135, 138, 140, 142,
149, 158, 159, 187, 190, 195,
197, 200, 211, 213, 214, 216,
207, 222, 223, 225, 228, 231,
238, 240, 241, 246, 25, 257,
259, 285, 300
aspirations, 194
Inlamization of knowledge, 2
AL-Ghashli's theory, 189, 195
sand analogy, 224
maglahah, 200

stated simply, 217
Gibb, Hamilton A.R., 255
Gilani, Riazu! Hasan, 5
Goldaiher, Ignaz, 4, 148, 150, 161,
185, 103
growing tree, 52
grundnorm, 38, 63
and Objectives Resolution, 39
had through, 9
Pakistan, 9

badd
doctrines of, 110, 114

aod grandnorm, 38
interest of Man, £2

336. Inpex
Hall, Jerome, 293 taki, 58, 65
Hallag, Wael B., 152, 273-74 04, 58, 65-67
Hambodur Rahman, C.J., 39 uk shar’, 5
Hanafi vexts ?
i ee
nes. Tha Abi Layla, 154
and development of law, 176 Pangani oe 8
of traditions, 176 jusayyib, 82
formulataion of, 158 Ton Hazm, AbG Mubammad, 83, 150
main features, 175 Tha Jama‘ah, 256
ajee assumptions, 176 thn Khalddn, 12, 124
modification by al-Shas's, 178 ton Mas‘dd, 82
Hanaball theory, 185 Yon Nujaym, 139, 196
age al-‘abd, 74 Tha al-Qasim, 154
‘hagg Allah, 74 Ton Qayyim, 12, 13, 124, 181

‘agg alesaltanah, 58, 73, 74
hogy al-sultin, 58, 74
hard cases, 7

Hasan, Ahmad, 3, 21, 149
Aaal, 99
Heyd, Uriel, 15

9

Holmes, Oliver Wendell, J., 47
budsd, 15

as right of Allah, 121
Budid Ordinances

dowbt (shubhah), 91
hukm

and authority of state, 37

Ton Rushd, 48, 58, 74, 81, 96, 97,
115, 136, 138, 140, 143, 168,
169, 171, 187, 192, 193, 240,
1

Thm Taymiyah, 6, 12, 15, 42, 124,
189, 255, 267, 259, 261

Ibn Ziyéd, Hasan, 154

Torabim al-Nakha’i, 154

Theories of Islamic Law

ikhalah, 193, 201
ikrah, 100
‘illah, 210
derived, 208
effectiveness of, 211
‘alm al-kalém
and figh, 24
Imam — al-Haramayn—see ale
Juwayni, 17
inner sphere, 16, 114
insanity, 92
interest of Man, 42, 236
a-Rast's argument, 43
interests
and rights, 249
definitive and probable, 246
pablic and private, 245, 248
rearranged, 249
securing of, 242
interpretation
mr, 139
bayan, 138, 166
common features, 129
common theory, 9
dotatas, 139
dalalat al-lafs, 140
doll al-khvjab, 138
cater schools, 280
equivocalty, 137
AkGhaaall' theory, 190
general, 131
general word, 137
Manafi, 172
Hanafi aystem of, 173
‘hukrmah, 141, 142
halon, 143
in Islam, 4
iehtirah, 138
judge-made law, 177
hays, 140
kinds of words, 136
eral, 169, 171
literal methods, 136
Weralist tendencies, 191
muhtomal, 138
muymal, 138, 166
muh, 142
nag, 138
nahy, 138
naakh, 139

337

impact of Western theory, 276
interest of Man, 42
Mholifot Allah, 44
Aalifot ol: Raoul, 44
legal fictions, 109
limits of, 49
‘matarity of, 158
meaning of code, 50
misconceptions, .2
‘of crimes, 293, 300
prerequisite for, 151
Principles, 12
principles of, 282
tights, 87, 194
rigidity, 109
rigidity of, 275, 281

ale of permisstilty, «7
rake of prohibition, 48
status of Man, 42
structural changes, 152
structure, 17
structure of, 57, 268
suncodifed, 296
‘alidation of, 298
Western theory of, 273
when shart'ah silent, 47
Islamic Revearch Institute, 295, 209
Islamic state, 41
Islarnization
And lav of crimes, 293
sowmplete,
of entire |
of laws, 8
partial, 90, 82
strategies of, 292
strategy of, 44
test of tepugnancy, 300
stidlal mursal, 207
example of. 225
‘stihsdn, 190, 184, 198, 194
tiga, 24

Al-dagaig, 156, 157, 166
jest, 09,
yihad
fund nature of truce, 252
purpose of, 251
suxpeonion of, 283
Jilani, Arma, 39
Jurisprudence
and wl ab-fig,2
‘content, 2
geneo 2
particular, 2
juriatic activity
weope of, 83

28

194, 196, 233
and Abé Hanifab, 148, 149
contribation of, 195

Kamali, Muhammad Hashim, 13
Ab-Karkhi, 157, 196

Inpe>

sgeaeral principles, 172
Al-Kasaf, 61, 149, 190
Kelsen, Hans, 62, 63
haber wahid, 164
implication of, 175
Khadduri, Majid, 193,
AlKhafif, ‘All, 136
Khan, Qamaruddin, 44, 255, 257
259
hora, 14
AbKhaswaf, 157
‘fhutab, 24,71
bands of, 86

Lambton, Ann, 255, 258, 250
Laoust, Henri, 255
law
Ialamiation of, 8
schools of law, 8
valdity of, 2
Lawgiver, Tl
hua, 71
egal capacity, 75
scquired defects, 97
dminaion, 102
and deatb-lness, 93
and fainting, 93
and idiocy, $9
and sleep, #3
and ‘otoh, 98
and marag olmawt, 93
and naw 93
od minydn, 93
cansen of detect, 90
contemion, 102
dorens, 100
‘ect of coercion, 101
ect of intoxication, 97
edlects of, 18

literalist tendencies, 229
Llewellyn, Kart N., 190, 19)

mehkdm ‘alayh, 35, 71, 74
mahkam doh, TL
mahkum fih, 35, 60, 71

50

Maimonides,
Malik ibm Anas, 10, 82, 84, 155, 190,
275
mandt, 76
of ahifyot al-ads’, 87
of ahliyat al-wuyab, 76
méni’, 68
magasid al-shari'ah, 195
and supremacy of shart'ah, 261
and the economic system, 262
sand the family wait, 247
‘and the Begal system, 265

wider concept, 212
maplahah murselah, 193, 207
Maturidi, Mubammad

Mubarnmad, 22
Maturidis, 46

ataral law, 46

Al-Mawardi, 12, 58, 61, 74, 114, 119,
123, 124, 156, 259

ibs

Abe Hanttah, 170
Abt al-Hadith, 172

moral norma, 218
Ma’adb ibn Jabal, 3
mu aththir, 202, 208

AbMusani, 155

AbNakha'l, Ibrahim, 165, 173, 182
AbNasafi, 172

Nasim Hasan Shah, C)., 40
natural low

AL-Nawawi, 190

opinion of Companion, 133, 176
‘abShafiT’s view, 182

original rule
‘of perminsibility, 47
of prohibition, 48
permussibility, 293
probibition, 293

origin of wpa, 277

Ottomyns, 15

puberty, 8Y
purposes of

law, 195, 213
and the tex

al-Shatits’s contribution, 234
sirucbare of, 240
supplementary, 214

types of, 237

worldy, 214

tind, 15
AL-Qarkf, 18, 163, 190, 197
haven, 168
aawa'id fighiysh, 147, 196
qawed ‘sd uruliyah, 144
qawdnin wpiliyah, 144
Al-Qaewini, 303
96 IS
yas, 131, 140

‘aka, 142

vubhi, 102

Theories of Islamic Law M1
mmundsib, 142 Rippin, Andrew, 112
‘qiyde al- Wlah, 140, 141, 143, 185 | Roman

143, 184
‘gtyas al-shabah, 140, 142, 143, 184

tahgtq ol-manat, 142
abShafit’s view, 143

and the formation of principles,
198

and wbhdlah, 185

and ro'y, 150

= source of law, 29

iy alema'nd, 211
eiyés al-shabad, 212

Rahim, Abdur, 4
30, 134, 148, 149, 159, 175, 275,

fundamental, 3
rigidity of law, 275, 281

my
Rosenthal, E.1.J., 255, 259, 261
rukn

of, 68
rule of recognition, 64, 296
Pakistan,

rulers
authority for sjtihad, 53
duties of, 262

rules
‘aod primitive nystems, 104
interaction, 69

sabab, OT
obi mumayyts, 92

}Shari'ab, 5, 21, 72, 28, 35,
46, 57, 62, 135, 137, 100, 198,

AlSarakhsi, 57, 2, 76, 136, 137,
139, 158, 164, 190, 198
Schacht, Joseph, 4, 11-14, 80, 149,

342

‘Sunaf, 11
secondary rules, 7, 57, 65, 67
sentences

commoating of, 119, 121

Seagin, Puat, 274, 276

ALShafit, 7, 18, 30, 47, 82, 84, 129-
132, 136, 137, 140, 142, 143,
152, 159, 169, 170, 172, 178,
181, 182, 184, 186, 189, 195,

opinion of Companion, 179

‘satus of Sunnah, 179
Shafiur Rahman, J., 299
shari'ah

shart, 68
AL-Shatibi, 67, 118, 132, 187, 281,
234, 295, 237, 238, 241
shautah (power),
AlShaybani, 60, 159, 164, 182, 186,
190, 232, 275, 303
sdher al-riwayah, 153
Shaykh al-foldm, 15, 113
Al-Shiriil, 155, 156
shubhah (doubt)
and waiving penalties, 119, 122
and (a'str, 106
Wi al-dalit, 48, 72
righar, 92
sihhah,
siydsah, 230
and ta’str, 123
doctrine of, 12, 81, 112

as source of law, 29
Al-Suyati, 49, 196

Al-Tabawi, 156, 157
tab

Theories of Islarmc Law

tabsingt, 218

and divorce, 81

taglid, 53, 54, 113, 157, 281
and stare *

‘Tarabulusi, 12, 16, 112

taxes
exten shar’ 12, 14

theory of general principles, 278
jas, Clarence, J., 46

Uteral interpretation, 169
of riba, 168
abShafi''s view, 181
theories of, 160

truce, 252

“Ubadab ibn al-Samit, 174, 182
Udoviteh, Abraham L., 156
ultimate values, 215

‘ths abemr, 38

“Umar ibo al-Khastab, 83

eniform nature, 10, 150

344 Inpex

‘eniform theory, 10

Vesey-Fitegerald, 305 office of gaat, 85
Watt, W. Montgomery, 253 Loca
Weber, Max, 12, 13, 275 2ahir al-riwaysh, 153
Western theory | method of, 164

impact of, 276 Zahiri theory, 185
women Zufar, 134